Title II Forbearance Is Actually So Easy It Makes Me Want To Puke.

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[Commentary] For those following the debate around whether to classify broadband access service as a “Title II” telecommunications service under the Communications Act of 1934, you may have heard about a thing called “forbearance.”

For those unfamiliar with telecom law lingo, “forbearance” refers to a special magic power that Congress gave the Federal Communications Commission as part of the Telecommunications Act of 1996 which gives the FCC the power to say “you know that specific provision of law that Congress passed? We decide it really doesn’t make sense for us to enforce it in some particular case, so we will “forbear” (hence the term ‘forbearance’) from enforcing it.” Or, as the DC Circuit explained in a case called Orloff v. Federal Communications Commission, once the FCC invokes forbearance and decides to forbear from a particular statute, the statute for all practical purposes disappears.

For those familiar with the argument, you will also know that the anti-Network Neutrality camp argues that getting the FCC to forbear from any rule is such a horribly complicated and detailed market-by-market analysis that the FCC couldn’t possibly grant the kind of broad, nationwide forbearance we would need to make Title II workable. As someone who actually lived through the 8 years of the Bush Administration and saw almost every single pro-competition provision of the 1996 Act stripped away by forbearance proceedings, I can only say “hah, I wish.”


Title II Forbearance Is Actually So Easy It Makes Me Want To Puke.