Guess what the cable companies think of this
Unsurprisingly, the cable companies are not over the moon about any of these scenarios. Verizon even went to the trouble of creating a 24-page white paper [PDF] that digs into them all and claims none would withstand a legal challenge.
"Far from providing closure to the net neutrality debate, then, Title II – under either proposal – would only prolong the debate, setting off shockwaves of regulatory uncertainty that could paralyze the Internet ecosystem for years to come," its lawyers warned.
What is clear from all the discussion is that the FCC is going to be hard pushed to suddenly change its mind after nearly 20 years of precedent and decide that internet access and phone lines are suddenly equivalent, when they clearly are not.
The FCC clearly cannot come up with new rules on its own – we've already been down that route – so it must find some existing legal mechanism to classify internet access.
It's worth noting that absolutely no one on either side is suggesting that this issue go to US Congress to develop a new law; that path would open up the entire country's telecoms policy for review. There is a good reason why it took 62 years for the 1934 legislation to be properly reviewed and, even then, it was kept largely intact.
So a creative solution is needed. And it will almost certainly be subject to a legal challenge. This is what FCC chairman Tom Wheeler highlighted in his response to Obama's proclamation this week: "The more deeply we examined the issues around the various legal options, the more it has become plain that there is more work to do. The reclassification and hybrid approaches before us raise substantive legal questions. We found we would need more time to examine these to ensure that whatever approach is taken, it can withstand any legal challenges it may face."
Rather than playing legal games, there is another option: the FCC could decide that broadband providers have to unbundle their services and then apply different rules to each component.
That would cause an almighty upheaval, and would likely require some higher level of authority. But if all the other options look impossible, it is a possibility the President would likely go for it. ®