FSF's May: Title II Is Major Misstep - Multichannel

FSF's May: Title II Is Major Misstep

Former FCC Attorney: Agency Fact Sheet Missing Key Facts
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Randolph May, former FCC assistant general counsel and a strong critic of Title II regulation for the Internet, has taken to the op ed page of The Washington Times to put an exclamation point on that criticism.

In a piece Monday, May, who heads free market think tank The Free State Foundation, called FCC chairman Tom Wheeler's plan for reclassification, outlined two weeks ago, one of the commission's most misguided in his almost 40 years in the communications law and policy arena. May also took aim at the FCC fact sheet that accompanies the chairman's circulation of the open Internet item to the other commissioners.

Having essentially conceded a partisan 3-2 vote (Feb. 26) to approve reclassification -- as have most FCC watchers -- May says it will now be up to the Congress and courts to "mitigate the damage."

There is a Republican-backed bill to block Title II regulation, but it would almost certainly be vetoed by a President who appears to have made Title II one of his last-term legacy issues, part of the broader push for wireless broadband and adoption. But the decision will wind up in court in a Wing-tipped Washington minute if wired and wireless ISPs stick to their pledges to see the FCC in court if they see Title II on the books.

May counts the ways in which the FCC decision will prompt such a response:

First, he says, reclassification will mean rate regulation, Chairman Wheeler's protestations to the contrary.

Second, according to May, Wheeler's suggestion that new, "bright line" rules will provide regulatory uncertainty, belies the "general conduct standard" also in the rules that will allow the FCC an open-ended catch -- all to go after conduct that the FCC concludes huts consumers or edge providers -- ISPs are assumed to be the potential bad actors.

He says that open-ended authority is too much for "an agency that has shown itself bent on expanding its power. It is simply an invitation into the unknown, sure to be the source of much future litigation."

Third: May says the President's "highly visible, direct" intervention in the proceeding was an improper direction of action to an independent agency. The President last fall called on Wheeler to implement Title II, and the Wall Street Journal reported that some White House staffers actively built and made a case for Title II.