February 2015

[Commentary] Uncertainty -- of what the Federal Communications Commission intends to do, of how the courts will view their efforts, and how private investors in broadband infrastructure will respond -- is now the order of the day. That is both a significant and unfortunate course change. For most of the Internet era, tech policy has been a bright spot in Washington (DC). Not only has it been a rare example of bipartisanship, but also of regulatory wisdom.

The governance of the Internet, for the most part, was left to the engineers who invented it, rather than to the whims of lawmakers and regulators. It’s entirely possible that Feb 26’s historic vote will end up a historic footnote. The legacy of the Title II order, in fact, may be little more than a period of costly and unnecessary uncertainty. In the meantime, there’s still both time and hope for a return to the bipartisan policy that has made the Internet the greatest generator of innovation since the Industrial Revolution. And if not a political solution, there’s always a chance at a technical one. The Internet has a long history of innovating around rules and regulations that slow it down, whether those rules were designed with the best of intentions, or otherwise.

[Larry Downes is project director at the Georgetown Center for Business and Public Policy]

[Commentary] In the wake of the Federal Communications Commission's dramatic shift toward reclassifying broadband Internet access under Title II of the Communications Act, people are asking whether there is cause for concern about how the FCC reached its decision. For two professors of telecommunications and administrative law, the controversy around the FCC's order provides a teachable moment. We write not to add to the onslaught of commentary on the merits of the rules -- which are not yet public -- but rather to address the legitimacy of the FCC's decision-making process.

To cut to the chase: there's no evidence of a process foul in this case. In the case of the Open Internet rules, we have yet to see how the agency's rules stack up in court as a matter of well-reasoned law and economics. That day will come soon enough. And when it does, the strength or weakness of the FCC's analysis, not whether it made a "political decision" that aligned with the Administration, will be determinative of the result.

[Philip Weiser is a Professor and Executive Director of Silicon Flatirons, University of Colorado
Kevin Werbach is a Professor at the Wharton School, University of Pennsylvania]