Appeals Court Declines to Rehear Title II Reclassification Challenge - Page 2

“It might motivate the democrats to come to the table,” explained TechFreedom communications director Evan Swarztrauber. Swarztrauber said that he worries that the classification of the internet swinging between Title I and Title II will continue if the next administration is a Democratic one. Right now, he says, the two sides are locked into a partisan divide.

“There’s no dialog right now,” Swarztrauber explained. What’s worse, he said is that there doesn’t seem to be any interest in a dialog about how the internet should be classified. “Politics is the reason why we don’t have resolution. One side can use it to beat the other side’s head.”

Both sides of the net neutrality question have hardened their position so that compromise is unlikely, Swarztrauber said. “It’s almost become a religious war,” he said.

The problem with religious wars about technology is that there are no winners. We’re already seeing both sides of the whole Title II issue taking extreme positions and refusing to admit that there’s a reason for any other position. To make matters worse, those religious factions are based on ideas that are simply wrong.

Title II reclassification, for example, is assumed by its proponents to guarantee internet freedom and net neutrality. But it doesn’t. The internet’s position within Title II is so impacted by forbearances that its legal justification is dubious. Worse, those forbearances are a creature of the FCC, which can change them for better or worse at its whim.

Forbearances are regulations that the FCC agrees not to enforce, including portions of Title II. Examples would be rules aimed at telephone service providers such as requirements for operator services or handling of obscene phone calls that aren't relevant to internet services.

Worse for the Title II backers, a number of legal authorities, including those dissenting judges, are suggesting that what the FCC was doing consists of forbearance abuse and that many of the forbearances aren’t actually legal.

Those forbearances were created as a part of the Title II reclassification in early 2015 as a way to shoehorn the internet into a model designed for circuit-switched networks. But the fit was not an easy one, and there are many questions raised about the way the forbearance issue was handled in the first place.

But the Title I proponents are also missing a critical part of the picture that isn’t around this time. When this all started, there was strong support for bipartisan legislation that was ready for certain passage, and which would give the FCC its statutory basis for net neutrality. Without that, Title I will only lead to more court challenges and this time there’s no indication that Congress is in a mood to do anything that’s bipartisan.

This leaves the public in the worst possible position. There are two sides playing a game of regulatory chicken. When that happens, there will be no winner, but the internet users will certainly be worse off.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...