Yesterday, the Wall Street Journal reported that FCC Chairman Tom Wheeler is preparing a “hybrid” legal basis for new net neutrality rules: The FCC would continue to regulate retail broadband service under Title I using Section 706, but would use Title II to regulate a new back-end service “in which broadband providers serve as the conduit for websites to distribute content.”

TechFreedom President Berin Szoka offered the following comment:

King Solomon wasn’t serious when he proposed splitting the baby. Let’s hope Chairman Wheeler isn’t either. Subjecting any part of broadband to Title II opens the door to FCC regulation of the heart of the Internet.


The Chairman is in a difficult position. He knows that those pushing for Title II, claiming it would allow the FCC to ban paid prioritization, are simply mistaken. But he’s under enormous pressure to give them some kind of win. Among many problems, Title II would require the FCC to set prices paid by edge providers for having their traffic carried to users — the very opposite of “net neutrality.” Since the FCC claims that ISPs have a “terminating access monopoly” over delivering edge providers’ traffic, it’s difficult to see how, legally, the FCC could forbear from this requirement. And if today’s FCC can make forbearance that easy, then what would stop a Republican FCC from using forbearance to gut any rules based on Title II?

Title II is unworkable in any form. So Wheeler has only two options. First, he can base new rules on Section 706, which would not require charging edge providers but would allow the FCC to police paid prioritization. No, the FCC couldn’t ban all paid prioritization, but it couldn’t do so under Title II, either. Second, he could do what the FCC should have done a decade ago: admit that the Communications Act no longer makes sense and ask Congress for new authority.


The contours of a deal are clear: Republicans and many Democrats will insist that new legislation bar any application of Title II to the Internet — and stop the FCC from claiming Section 706 as a blank check to regulate the Internet. A broad consensus already exists for giving the FCC some authority over transparency, a no-blocking rule and anti-competitive practices. There’s much Congress can do to make it easier for upstart ISPs like Google Fiber to enter the broadband market.


The President has two years left to make good on his campaign promises of post-partisanship. Congressional Republicans have a strong incentive to demonstrate that they can govern responsibly. And all sides of the tech industry desperately need this intractable fight over the FCC’s authority to end. If Chairman Wheeler had half the wisdom of Solomon, he’d try to broker a deal.

Szoka can be reached for comment at

See more of our work on net neutrality, Title II, and broadband competition, including:

About TechFreedom:

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.