Title II Reclassification and the Price Regulation of Retail Broadband Services

[Commentary] While I am not aware of any call for the Federal Communications Commission to regulate retail broadband prices, the legal requirements of Title II do not simply bend to the agency’s or advocates’ desires.

If paid prioritization is to be regulated, then price is to be regulated, and under Title II the price regulation of a carrier-to-consumer service is executed via tariffs. Forbearance of price regulation via tariff might be a sensible strategy if not for (at least) two hurdles: (1) forbearance is the surrendering of the agency’s control of price to the market and network neutrality appears now to be about the regulatory control of price (i.e., a ban on paid prioritization); and (2) the FCC’s precedent on forbearance and its claims about industry structure interfere with a straightforward forbearance determination. If the agency believes net neutrality rules are required, then the path set forth in its 2014 Open Internet NPRM seems to be the most sensible approach, especially since, as Rep Henry Waxman (D-CA) recently conceded, Title II cannot be used to prohibit paid prioritization. As such, Title II reclassification is not just messy, costly and legally risky, but it’s also an impotent strategy for achieving the ostensible goals net neutrality.