Framework for an Open Internet -- Section 706, Title II, and Forbearance

The future of Internet innovation and competition will turn on decisions the Federal Communications Commission (FCC) will soon make in the Open Internet Proceeding. This paper discusses why partial reclassification of sender-side-only traffic is not a reasonable path forward, and argues that there is only one workable path forward -- the FCC should: (1) rely on Section 706 as the foundation for protecting both sides of the two-sided broadband Internet access platform; (2) reclassify both sides of the two-sided Internet access platform as telecommunications; and (3) forbear from the bulk of Title II provisions to deliver “just enough” Title II to support the application of Section 706. This paper discusses the policy synergy associated with the Section 706/Title II/Forbearance approach, and discusses case law that supports the proposition that higher courts will defer to the FCC's reclassification and forbearance decisions.