Earlier today, experts in communications policy gathered for the Phoenix Center event titled “The Broadband Credibility Gap.”  The purpose of the event was to address the question of whether the FCC has the credibility to live up to its promises, particularly in the area of forbearances of the Title II regulatory authority it seeks.  George Ford, Chief Economist of the Phoenix Center, argued that the evidence demonstrates the FCC will not be a light-touch regulator, citing research he and Larry Spiwak, President of the Phoenix Center, shared in their recent paper on the topic.

Ford believes the FCC should not be trusted to impose and maintain light-touch regulation under Title II authority.  Aside from issues around the commitment of future commissions, he cited examples of price regulations, unbundling regimes, and policies set out in the National Broadband Plan, as examples of the evidence against light-touch.  Ford warned of wireless being pointed to as an archetype of the type of regulation the FCC seeks, when so much of wireless is being regulated.  Ford concluded jobs and investment are the real national priority, with some of the most compelling evidence in investment effects, as cable stocks were down 10% on the announcement of the Title II reclassification.

A panel of experts largely agreed.  One of the panelists, Jon Nuechterlein, a Partner with WilmerHale, warned of three dimensions of uncertainty by Title II approach.

1)  The uncertainty of direct appeal itself since legal risks attendant to an appeal.

2) The implementation of cramming Internet players into regulatory silos that were designed for an older market.

3) Under Title I, there were no rules that could be imposed against any provider unless FCC spelled it out ahead, whereas Title II rule is very different and not case-by-case.

Kathy Brown, Senior Vice President for Public Policy and Corporate Responsibility at Verizon Communications similarly warned against going backwards.  She believes the answer is in Congressional consensus, if at all, since she sees little harm to be addressed.  She believes that the case-by-case approach with a complaint-driven, factual showing may be appropriate since it would protect both consumers and competition.

Click here for a summary of FCC Commissioner Robert McDowell’s closing keynote.   Also, be sure to check out our recent interview with Jon Nuechterlein on the issue of FCC authority below.

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