Policy

Free State Foundation Blasts 'Fatefully Misguided' Title II Regs

Says paid prioritization should be allowed 7/17/2017 12:10 PM Eastern

The Free State Foundation, a free-market think tank, put some reverse spin on Shakespeare, succinctly counting the ways in which Title II is unloved.

"The Title II Order was a fatefully misguided act of regulatory aggression leveled at a dynamic broadband Internet marketplace, and it must be reversed," Free State said in comments strongly backing the FCC proposal to reverse the Title II reclassification of internet service providers as common carriers.

Initial comments on the Title II order were due Monday (July 17).

Free State called the FCC Title II order (1) unwise; (2) unnecessary; (3) unjustified; and (4) unsound.

IT also called on the FCC to rectify the situation "without delay" and "remedy the demonstrable harm that misguided foray into overzealous Internet regulation has caused."

That would be by rescinding the Title II telecom classification and returning to the light-touch regime under an information services classification.

Free State argued that Title II has depressed investment, that there is no market power or consumer harm justification for the FCC's imposition of utility regs on IPs, and that once the FCC has rolled back Title II, both Justice and the Federal Trade Commission will have the authority to address an anticompetitive concerns about ISP practices.

Free State also said the FCC lacks direct statutory authority to regulate ISP practices, but if the FCC concludes it needs to have some regulatory oversight under ancillary authority, it should permit paid prioritization, unless it is demonstrably anticompetitive, and should regulate access under a commercial reasonableness standard on a case-by-case basis, rather than the current bright-line rules against blocking, throttling.

That standard should require findings of both market power and consumer harm, it said, taking a page from antitrust enforcement.

As to paid prioritization, "Consumers stand to benefit from novel services providing Quality-of-Service guarantees that depend upon paid priority arrangements between broadband ISPs and edge providers."

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