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Summary:

The entire debate over what to do about big broadband companies boils down to one phrase: Title II, which is the FCC’s only source of real power. Here’s an explanation of what it is and why insiders think the FCC won’t dare use it.

“Speak softly and carry a big stick,” is good advice, but it only works if you use the stick to smash someone in the mouth from time to time. If people think your stick is just decoration, you lose power.

This is the FCC’s dilemma as it tries to design rules to prevent broadband providers from playing favorites when they deliver web traffic. It has a big stick, called “Title II,” but most people think the agency lacks the political juice to wield it against some very powerful companies.

And while some have proposed “light touch” options to avoid a confrontation, that may be wishful thinking: FCC Chairman Tom Wheeler will have to go all-in and swing the Title II stick, or just it lay down altogether. To get a better idea of Wheeler’s predicament, here’s a fresh look at Title II: what it is, who is for and against it, and why insiders think Wheeler won’t use his only weapon to enforce net neutrality.

Title II: what it means in plain English

The telecom scene is jargon-heavy, and the Title II debate is no exception: the crux of the fight turns on whether the FCC should re-classify broadband companies as a “telecommunications service” instead of as an “information service.”

Why does the label matter? In theory, it should not: the FCC could call Comcast a cat food company, and it would still provide the same services. But under FCC rules, the “telecommunications service” label is important because it triggers a series of obligations under Title II of the Communications Act of 1934.

Those obligations, which cover everything from price-caps to closed-captioning to emergency services, have traditionally applied to “common carriers” like wireline phone companies, and place restrictions on how they run their business. That’s why broadband providers like Comcast and Verizon don’t want to live under Title II — they want to continue on as “information services” under a different part of the law (Title I) which, on paper, involves a lighter regulatory load.

There’s one more important element to the Title II debate, however. It’s the idea of “forbearance,” which is industry-speak for the FCC’s power to impose some obligations but not others. For instance, the agency could say the rules of section 224 on “Pole Attachments” no longer apply, while leaving other sections in place — perhaps section 202 (non-discrimination) and section 208 (complaint procedures).

This would mean that Title II would not be as onerous as it appears, but it would still require a legal two-step on the part of the FCC: the agency would have to issue a re-classification order to make the broadband companies a “telecommunications service” under Title II, and then declare a series of forbearance measures to explain which parts of the law will not apply.

The FCC, by the way, has the legal authority to do all this. There’s no doubt about it, because the D.C. Court of Appeals said so in a thunderbolt court ruling in January. The ruling struck down the FCC’s last set of rules on net neutrality, but said they would have been legal if they had been issued under Title II.

Why some say we need Title II, and others say we can’t have it

The Electronic Frontier Foundation recently took the position that the FCC should use its Title II power to bring broadband providers to heel. This declaration, coming from a group that has long been suspicious of government regulating the internet, came as a surprise and reflects growing concerns over the power of Comcast and other big ISP’s.

According to the EFF, Title II is necessary to stop a future where big ISP’s can give special “fast lane” treatment to websites they like (or that pay them) and slow down small sites, or ones tied to their competitors. Comcast, for instance, might one day decide to give a speed boost to its tech site Re/Code, while slowing down readers’ access to Gigaom.

The EFF isn’t the only one calling for Title II. The CEO of Kickstarter recently warned that “fast lanes” could impede the next generation of web services from emerging because a future Facebook or Twitter might not be able to afford the toll to reach customers in the first place. The Title II chorus is also coming from the likes of Reddit and Netflix, and from politicians like Sen. Charles Schumer (D-NY).

lte0025_speed_of_light_highway (1)

The goal of the Title II advocates is not, of course, to reclassify broadband providers for the heck of it. Rather, they believe the FCC has no other choice if it truly wants to prevents ISPs from favoring some websites over others. As Netflix told the agency last week, two previous attempts to use other laws to enforce net neutrality have failed —  meaning it’s Title II or bust.

Meanwhile, big telecom companies have come down just as strongly against Title II. Their best argument is that reclassification would turn them into public utilities with no incentive to invest in pipes or new technologies. Comcast said so in a recent blog post, adding that Title II is not necessary given the FCC’s auxiliary power under Title I, and trying to use it will only cause a mess of legal headaches.

The anti-Title II companies, which also include Verizon and AT&T, are supported by some conservatives who take the position that the FCC will stifle innovation, and by Republican politicians like Rep. Bob Latta (R-Oh) who is trying to pass a law to clip the FCC’s net neutrality wings.

As you can see, the Title II debate is divisive, which has led some to call for a middle ground — one that is unlikely to work.

“Title II lite” is an illusion

Net neutrality advocates who want to help the FCC escape its dilemma have come forward with ideas that, they suggest, will let the agency impose Title II but without too much screeching from Comcast and the gang.

One idea comes via the Mozilla Foundation, which has called for the FCC to apply Title II but only at a deeper layer of the internet where ISP’s meet “edge providers” like Level 3 or Netflix. Another comes from law professor Tim Wu, an authority in the field who first coined the term “net neutrality, and who proposes a belt-and-suspenders approach:

the Commission’s best course is to pass tough rules under 706 with Title II as the backup, to insure the rules survive a court challenge. This strategy may actually ward off court challenges, given that it presents the carriers with a kind of trip wire.

Under Wu’s proposal, the FCC would draw, but not fire, its Title II weapon, while also keeping the ISP’s in line on a day-to-day basis with the Title I powers it has used in the past.

These proposals hold out the promise of Title II lite — a way to show the ISPs that the FCC means business but without triggering a political brawl. And the FCC appears to be listening:

The problem, however, is that opponents will likely fight just as fiercely no matter how Title II is invoked, since it is not the details they oppose so much as any type of reclassification in the first place.

According to Paul Werner, a veteran telecom lawyer at Shepherd Mullin, Wu is correct that agencies like the FCC can and do create rules under multiple sources of law; however, in the case of Title II, Werner suggested by email that Wu’s “backup” plan wouldn’t fly with the courts:

But what the courts have said the FCC cannot do is use Title II as a “backstop” for imposing core Title II obligations – such as non-discrimination or common carriage requirements – on internet service providers.  The DC Circuit invalidated just such an approach recently in holding that the FCC cannot backdoor Title II regulations under the guise of its Section 706 authority.  Instead, the fundamental legal and policy choice facing the Commission is whether or not to re-classify internet service as a “telecommunications service” subject to the full complement of Title II regulations.

This is another way of saying that, when it comes to Title II, the FCC can’t be half-pregnant. While the agency could invoke Title II and immediately forebear on its more onerous obligations, it would still have to stand and fight for Title II in the first place — and that is something it’s reluctant to do.

Why the FCC won’t use its only weapon

The FCC has received more than a million public comments about net neutrality — a huge response, second only to Janet Jackson’s infamous nipple-slip — and many of them explicitly call for Title II. But, for now, those comments won’t matter too much. Title II may have popular support and it appears to be the correct policy choice, but that’s still no match for corporate realpolitik.

Simply put, Title II advocates just don’t have the money and lobbying firepower to challenge the telecom industry. New figures, for instance, showed that ISPs have spent $42.4 million so far this year, and that Comcast alone spent nearly $4.5 million in the second quarter.

The notion that ISPs are throwing money around is nothing new, of course, but the critical issue when it comes to Title II is that no one is spending on the other side.

FCC Commissioners (L to R): Commissioner Ajit Pai, Commissioner Mignon Clyburn, Chairman Tom Wheeler, Commissioner Jessica Rosenworcel and Commissioner Michael O’Rielly (Source: FCC)

FCC Commissioners (L to R): Commissioner Ajit Pai, Commissioner Mignon Clyburn, Chairman Tom Wheeler, Commissioner Jessica Rosenworcel and Commissioner Michael O’Rielly (Source: FCC)

According to Washington insiders, the Title II cause appeared doomed after big tech companies like Google and Facebook decided to sit out the fight. While Yahoo last week made a slight peep that Title II might be necessary to prevent discrimination, the rest of the Silicon Valley giants — apart from Netflix — have stayed mum. While the tech industry would have likely lost a lobbying battle to Comcast even if it had opened its check book, its absence from the fight all but guarantees the FCC will leave Title II on the shelf.

Not everyone is pessimistic, of course. Harold Feld, a VP at consumer interest group Public Knowledge, says that the level of public awareness this time is far higher than the last time the FCC debated net neutrality.

“A lot of this clever political analysis applies to the last war,” he said, noting that pundits have declared other FCC decisions to be foregone conclusions — and then been proved wrong.

Finally, there is the matter of Chairman Tom Wheeler, who holds the ultimate card in the Title II debate. He’s a former cable lobbyist, and seemed a pushover, but has also shown a recent independent streak — and even warned that he “won’t hesitate to use Title II.”

If Wheeler is reading this, he may wish to ponder the example of the man who said “speak softly and carry a big stick.” It was Teddy Roosevelt, who is the subject of another famous quote by a powerful corporate baron, who complained of the President that: ”We bought the son of a bitch, and then he didn’t stay bought.”

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25 Comments

  1. Bruce Kushnick Thursday, July 24, 2014

    Excuse me but Verizon has classified its FiOS, FTTP Fiber to the Premises networks as Title II, common carriage, telecommunications service in every state and municipality cable franchise we found so far.

    Verizon’s FiOS Fiber to the Premise (FTTP) Networks are Already Title II in Massachusetts, Maryland, Florida, New Jersey, District of Columbia, Pennsylvania, New York…

    http://www.huffingtonpost.com/bruce-kushnick/-verizons-fios-fiber-to-t_b_5602393.html

    From New York

    LEGAL AUTHORITY TO CONSTRUCT FIBER TO THE PREMISES

    Verizon New York Inc. (“Verizon”), as a common carrier under Title II of the Communications Act of 1934 (the “Act”), constructed its Fiber To The Premises (FTTP) network as an upgrade to its existing telecommunications network. Verizon has the requisite authority to upgrade its network for enhanced voice and broadband services for the reasons discussed, in part,

    The fact that Verizon never told the FCC, the courts or the press is the real problem –

    1. Bruce, It looks like Verizon is upgrading its existing old copper telecommunications facilities to fiber in those cities you mention. The telecom part is, has been and will continue to be under Title II.

      The uniqueness of fiber optics, as I am sure you know is that it can carry voice, data and video through those “pipes”. Just because the transmission mechanism is multifunctional does not permit Verizon to unilaterally remove the telecommunications franchise it has and reclassify it based on this new conduit. Thus, the voice part of their service in these documents you cite here and in your HuffPo piece is what is classified under title II, not the data part (e.g., Internet and video part that is used for its broadband service).

  2. What does this (Title II) mean for the likes of Google Fiber?

  3. “While the tech industry would have likely lost a lobbying battle to Comcast even if it had opened its check book, its absence from the fight all but guarantees the FCC will leave Title II on the shelf.”

    Why do you believe the tech industry would have lost the lobbying battle? It surely can’t be a question of money, with Facebook + Google worth more than Verizon + ATT + Comcast combined. Perhaps it is because the need for net neutrality regulations is entirely hypothetical at this point, largely stirred up by Netflix trying to pawn off some of their bandwidth bill onto all ISP customers.

    1. Jeff John Roberts Tim Thursday, July 24, 2014

      Thanks for your comment, Tim. I think the tech industry’s silence might be due to Google et al’s ambitions to build/expand their own broadband delivery networks — and to harvest data and shape traffic as they do so.

      1. The tech industry players who have spent to time to study the impact of Title II oppose it. Take a look at the Information Technology Industry Council’s FCC comments opposing Title II reclassification at http://apps.fcc.gov/ecfs/document/view?id=7521678855 and look at their membership: all the major players and no ISPs.

        The Silicon Valley players with sufficient policy expertise the appreciate the implications actually have spoken, they’ve just been ignored by naive advocates, bloggers, and ideologues.

        And no, TItle II isn’t “the only path to net neut”, it’s arguably not even “a path to net neut.” Incidentally, there’s no such thing as “immediate forbearance”, each forbearance action will take a year or two, and one need to be done for each section of Title II the FCC wants top set aside.

  4. All Title II will lead to would be a slowing down of innovation, investment and the dynamism that we have come to love and expect from an open and free internet where anyone with an idea and drive can launch a business and succeed.

    A heavy-handed government regulatory approach will drag the internet down and slow it to the max w/ all of the complex arrangements, pass thrus, and other burdensome aspects of heavily regulated utilities and regimes.

    No thank you. Please leave it be as is. We haven’t seen the market failure predicted the last time this issue was a big deal, yet here we are again, debating the same unsubstantiated “doom and gloom prognosis”.

    Um yeah, let’s pass. Thanks.

    1. Michael Lockwitz JJ Thursday, July 24, 2014

      Title II will lead to a speeding up of innovation, investment and the dynamism that we have come to love and expect from an open and free internet where anyone with an idea and drive can launch a business and succeed.

      A government regulatory approach will power the internet and speed it up to the max by forcing ISPs to stop complex arrangements, pass thrus, and other burdensome aspects of created by monopolies.

      Please, do not leave it as is. We have seen the market failure predicted the last time this issue was a big deal, yet here we are again, with people ignoring substantiated discrimination of free flowing internet traffic from Level 3’s network onto Comcast’s network.

      Um yeah, let’s enact Title II. Thanks.

      1. Can you give any positive examples of how innovation and investment would be positively impacted by a titleII style of regulation? Because I can think of some that have seen the opposite.

        The EU has suffered the repercussions of policies similar to TitleII regs being considered by Net “neutrality” advocates for so long that its own leaders are begging to overturn them. Sweden, France, and Italy, specifically, had the heaviest utility-style regs and now have the lowest level of next generation broadband access in Europe. After recently ending its version of title II internet regs, Spain has seen investments in ISP services explode, with the creation of 12 new fiber providers in a two year period. I think we’d all prefer the second.

        The argument that investment will be stifled under a more highly regulated scheme is an important one to note that will impact us all as well. Consider it from an investor’s perspective. If I am thinking of investing in a new ISP, but suddenly realize that I have hundreds of pages of regulations and thousands, if not millions, of dollars in new compliance costs to deal with, not only will the length of time it takes to make a profit be extended, but these costs will reduce my profit potential and force my dollars to consider alternative, more profitable possibilities. Without these investments, expansion and hiring will suffer.

        If you’re concerned about monopolization, consider that titleII may instigate collusion. All internet service providers will be forced to “tarriff,” a government system for publishing prices. Seems like a good idea on the face of it, right? Unfortunately, we’ve made this practice illegal in the US (antitrust laws) as too many companies have colluded to keep their prices high. Not sure anyone can argue that the subsequent and guaranteed collusion are better for US innovation and competition, or for the end price that consumers will have to pay.

        As hiring is already slow in this country, do we really want to guarantee less investment in a growing industry, higher consumer prices, and slower employment growth in a large swath of our economy?

        1. The problem with the view you’re espousing is that the “lowest level of next generation broadband access in Europe” is still leagues beyond anything offered in America saving a few tiny localities in KC, Tenn, the NYC area, and Austin, TX.

          Virtually every European nation, as well as South Korea and Japan, have implemented the unbundling aspect of Title II that was put into law with the 90s telecommunication act. And in every single case, it resulted in substantial competition and investment. Even in America during the late 90s, any ISP with an internet backbone access could start up a company, resulting in the rise of AOL, Netzero, Compuserve, and others. It was only the reclassification of ISPs as Title I providers that stamped out all this competition back in 2003.

          So no offense to your absurd spin, but in literally every instance worldwide, the switch to unbundling that would become an option under Title II has been an incredible boon to the economy, job development, and internet speeds and prices.

          1. This is total bullshit, the average level of per capita broadband investment in Europe is half what it is in the US. Why would an OTT ISP invest in the underlying network even if it wanted to? This is like asking a renter to pay for a new roof.

          2. I can only personally attest to Belgium and if that’s a representative sample, what you are saying is not true. The usage tiers (what Net Neutralitysists call “caps”) are far more prevalent and accepted and the speed averages you see tossed around are higher because they don’t offer lower priced plans at lower speeds for customers that want them. Broadband is more expensive there, people have fewer choices, they pay for capacity they don’t use, and penetration is lower. Maybe it’s nirvana in the rest of Europe, as you say it is.

      2. Nope. The Level 3 and Comcast issue were both contractual disputes related to Peering which is a separate matter entirely from the way most people and businesses use the internet. It’s a private matter between two business entities that has nothing to do with Net Neutrality but is being used by Netflix to get better terms and garner public support by conflating the issues.

        Again, from my understanding and experience with telecommunications and Title II regulations from 1986 and before, the section and the regulatory regime was created and written in a matter that did not anticipate the dynamic internet we have today. It was written when we had coaxial cable and dedicated phone lines, and did not anticipate that fiber optic conduits would be able to transport data, voice, and video down the same pipe.

        From 1986 until today, the industry has and continues to dispute matter related to reciprocal compensation, subsidies, local and government regulatory fees, PEG fees, and other fees. They are litigated and heavily debated and discussed ad nauseaum and this is what you want to burden our free and open Internet with? When currently, there is no real non-contrived problem?

        Again, leave it be and quit trying to drag the government into this. I like my Net as is. Thanks.

  5. UNSUBSCRIBE NOW

  6. The original telecommunications act was written and 1934 and then amended in 1996. Even 1996 seems a long time ago as far as technology goes. I think congress needs to earn their pay and scrap the telecom act and start a new. But don’t hold your breath.

  7. Unfortunately you seem to be presenting a debate how to legally move Internet access under Title II, but not really doing a very good job of describing what outcome you desire and how Title II achieves that outcome. You touch on your desired outcome with “bring to heel”, so maybe you could articulate that (according to the FCC’s own survey over 90% of consumers are satisfied with their service) and then explain how the various stakeholders will be better off, with the exception of ISPs that you want to bring to heel.

    Proselytizers of the Net Neutralityism religion advocate a basket of basically five grievances and desires (for starters, it started with one and they will come up with more):

    1. Ban being able to pay for varying levels of performance in favor of a single service level product for everyone – Nothing in Title II prevents this. The unreasonable discrimination clauses pertain to offering those services uniformly to anyone that wants them, not banning them from existence.

    2. Ban being able to pay for what you use and offer volume discounts (Net Neutralityism believers call these “caps”) in favor of a single price for everyone regardless of consumption – Nothing in Title II prevents this.

    3. Ban commercial peering – Aside from being technically impractical, Section 251 clearly accommodates commercial agreements for interconnection. It even specifies the duty of good faith negotiations to establish these agreements, and anyone would be hard pressed to say that Netflix is negotiating in good faith while perpetuating hyperbole in public forums that they should be entitled to unlimited interconnection for free.

    4. Ban sender pays agreements so that the end consumer is always the one paying for usage – Section 228 covers 800 services, they are permitted and covered within Title II.

    5. Ban the blocking of lawful content – This was the original idea around net neutrality and is something that has broad support. ISPs have already agreed to this. But Section 230 has an entire set of provisions on how lawful content can be blocked based on subjective definitions of appropriateness.

    Google would likely exit the business due to the Section 222 customer data provisions that would make their pay per click advertising business model illegal, so you can say good bye to Google Fiber.

    The consequences of Title II are complicated to where nobody can predict what they will be, but it’s not unreasonable to believe that if the above were enacted, you’d see prices rise for most consumers, you would see service quality degrade, and you would see innovative new entrants like Google leave the market.

    So long as Net Neutralityism believers continue to argue on hyperbole without substance, they are going to continue to be disappointed with the course of events, but the blogs will still get page views from the populist rhetoric, and page views are their desired outcome.

    Please don’t misrepresent Public Knowledge Free Press, and the likes as consumer interest groups because they do not have consumer interests in mind when they want to prohibit me from paying for the service level I need and force me as a casual user single person household to pay the same rate as a family of four next door that streams video off of netflix all day. That’s tyranny, not pro consumer.

    I suggest you stop framing the debate with aspirations to bring someone to heel that are disconnected from actual outcomes and consequences to stakeholders and more on betterment. Heck, you may even sway me to your side if you can put forth a decent case! If you really think you’ve got a good case, do an online debate with gigaom bloggers v. actual qualified experts.. Would be great for business!

    Now cue the proletariat mob to chime in calling me a Comcast shill and other niceties (I don’t work for Comcast I am just an informed citizen)

    1. I wouldn’t call you a comcast shill, but I do think it’s interesting that you cite the FCC satisfaction survey while failing to cite the “worst company in America” survey. I also think it’s interesting that you appear to have completely ignored the idea of forbearance described in the article when describing a world where prices increase and Google stops existing as a company.

      But you’re definitely not a shill.

      1. I meant google would exit the ISP business, not exit the advertising business. Why would they do it if they can’t use end user data to make money?

  8. Richard Bennett Friday, July 25, 2014

    For a good overview of the problems that Title II doesn’t solve, read Daniel Lyons on Tech Policy Daily: http://www.techpolicydaily.com/communications/title-ii-prohibit-paid-prioritization/

    It’s appalling that the blogs refuse to take a serious look at this issue and are content to parrot some rather tired Netflix talking points instead of offering credible analysis.

    1. Richard Bennett, thanks for sharing your perspective. But I do take issue with your suggestion that Title II critics are just “blogs” (is that supposed to be pejorative”?) that parrot Netflix talking points. If you read what I wrote above, you’ll see there’s more to the argument than that.

      And while Lyons points out that Title II is not a magic bullet, it’s a far better option than section 706.

      1. Are you a reporter or an op-ed writer, Jeff? To say that T2 is better than 706 is to engage in speculation, not to deal in fact. As I pointed out in a previous comments, none of the major players in Silicon Valley support Title II reclassification, and their main lobbying arm, ITIC, has strongly criticized it in their FCC comments.

        Why the news blackout on Silicon Valley’s opposition to Title II? It’s one thing for tiny little companies like Dwolla and Etsy to support Title II with no real knowledge of what it does and little more than a desire to please their investors, but it’s another thing for the companies who maintain real policy staffs to study it and oppose it.

        Your story isn’t factual. It also ignores the reality that 706 is binding on the FCC with or without a net neutrality/open Internet program.

        1. Why is it speculative to state what the DC court said very plainly in January: that the FCC can’t use 706 to mandate net neutrality — but that it can use Title II? You can make a case that Title II is a bad idea, won’t work, etc. But you can’t say that 706 can do Title II’s work.

          1. The court did not say “Title II is a better option than 706″.

            But again, the story you’re telling is “Silicon Valley wants Title II and the carriers won’t let us have it.” This is a gross distortion of the letter that the 100 major tech firms sent the FCC that DID NOT PROPOSE TITLE II and the FCC comments filed by ITIC that actively oppose Title II.

            It’s fine to oppose “fast lanes” but that’s not really Wheeler’s proposal. He favors “individualized bargaining” which is what the DC Circuit’s opinion said was OK.

            Individualized bargaining is how Akamai gets its servers inside ISP networks today so it’s not breaking new ground. Wouldn’t it be novel to have Internet regulations that legitimize today’s realities?

            But anyhow, I can read exactly the same story in Ars Technica, The Verge, Huffington Post, and dozens of other places. I expect to see truths repeated, but I’m disappointed by the repetition of spin, bandwagon-speak, and falsehoods.

          2. This is what the court actually said (pg 49-50):

            “In Cellco, we recently confronted the similar question of
            whether a Commission regulation compelling mobile
            telephone companies to offer data roaming agreements to one
            another on “commercially reasonable” terms impermissibly
            regulated these providers as common carriers. 700 F.3d at 537.
            From the history and decisions surveyed above, we distilled
            “several basic principles” that guide our analysis here. Id. at
            547. First, “[i]f a carrier is forced to offer service
            indiscriminately and on general terms, then that carrier is being
            relegated to common carrier status.” Id. We also clarified,
            however, that “there is an important distinction between the
            question whether a given regulatory regime is consistent with
            common carrier or private carrier status, and the Midwest
            Video II question whether that regime necessarily confers
            common carrier status.” Id. (internal citations omitted). Thus,
            “common carriage is not all or nothing—there is a gray area in
            which although a given regulation might be applied to common
            carriers, the obligations imposed are not common carriage per
            se.” Id. In this “space between per se common carriage and per
            se private carriage,” we continued, “the Commission’s
            determination that a regulation does or does not confer
            common carrier status warrants deference.” Id.

            “Given these principles, we concluded that the data
            roaming rule imposed no per se common carriage requirements
            because it left “substantial room for individualized bargaining
            and discrimination in terms.” Cellco, 700 F.3d at 548. The rule
            “expressly permit[ted] providers to adapt roaming agreements
            to ‘individualized circumstances without having to hold
            themselves out to serve all comers indiscriminately on the
            same or standardized terms.’” Id. That said, we cautioned that
            were the Commission to apply the “commercially reasonable”
            standard in a restrictive manner, essentially elevating it to the
            traditional common carrier “just and reasonable” standard, see
            47 U.S.C. § 201(b), the rule might impose obligations that
            amounted to common carriage per se, a claim that could be
            brought in an “as applied” challenge. Cellco, 700 F.3d at 548–
            49.”

            This says the FCC can have an anti-discrimination rule without going common carrier, just as it was able to pass the data roaming order without classifying mobile broadband (data plans) under Title II. If you don’t understand this, it’s no wonder you’d be confused about the FCC’s options.

  9. TA96 failed in the last mile because it was not uniform and they attempted to regulate rates.

    Successful past approaches to mandated interconnection included (relatively) laissez-faire approaches to pricing and settlements.

    Dial-1 (WAN voice), Computer 2 (data), A/B then PCS interconnect/roaming (wireless), Part 15 shared spectrum, aka wifi (mobile convergence; aka smartphone), must carry (content/cable), pole attachments (infrastructure), etc… are all examples of mandated interconnect. They were enormously stimulative and generative for incumbents and new entrants alike.