Title II Reality Check – Part 2: Legal Risks and Unintended Consequences

One of the primary misconceptions in the debate about how to regulate broadband is that “reclassifying” it as a Title II telecommunications service would be a simple correction of the Federal Communications Commission’s decisions to treat cable modem and DSL as information services rather than telecommunications services.

The parties supporting Title II are not seeking to reinstate a longstanding regulatory regime, but instead they are advocating an entirely new, untested approach that entails significant legal risk for the FCC and tremendous potential for unintended consequences. The first question the FCC would have to confront with Title II is how to define the “telecommunications service” that is subject to Title II regulation.