Lost in the noise over net neutrality are many key questions about whether Title II will make consumers better off or how it will affect underserved communities. At a recent meeting with FCC Chairman Tom Wheeler, Rev. Jesse Jackson and civil rights advocates warned that Title II would stifle broadband deployment, which would disproportionately hurt minority communities. Internet service providers (ISPs) have thrived since the 90s on the certainty of light-touch government regulation. Public utility regulation under Title II would discourage ISPs from investing in low-income areas, which only deepens the Digital Divide.

TechFreedom President Berin Szoka, along with several telecom scholars, pressed Chairman Wheeler on whether Section 706 was still on the table as a potential source of legal authority for the FCC to rely upon to police anticompetitive behavior. They also wanted to know how effective these rules could be, and what Title II provides that Section 706 doesn’t. Szoka reminded the Chairman that 215 House Republicans and 44 Democrats voted in favor of a 2006 Communications Act update that authorized the FCC to issue no-blocking and transparency rules. So those issues are uncontroversial. The controversy today is mainly centered around prioritization, and what forms of it – paid or otherwise – should be allowed on the Internet.

As we’ve long argued, Title II’s common carrier regime doesn’t allow for an outright ban on prioritized service offerings anyway — the chief reason offered for undoing the bipartisan consensus against Title II. A rule under Title II that mostly bans prioritization — but allows some forms of it — is little different in practice than a rule under Section 706 that doesn’t ban — but sets a heavy presumption against — paid prioritization. Both alternatives achieve the same outcome in the end, Title II creates a regulatory morass that even its proponents admit would need to be sorted out through drawn-out forbearance proceedings and related legal challenges.

Both civil rights advocates and telecom scholars urged Chairman Wheeler to resist the pressure from the Left to invoke Title II, and continue the bipartisan consensus light-touch regulation. But if the FCC does plan to invoke Title II, we urged the FCC to issue a Further Notice of Proposed Rulemaking laying out its proposal, and how forbearance would work, in greater detail, to better explore the problems involved in Title II, to help the FCC build a record that will stand up better in court, and to give the new Congress time to consider the best answer: a legislative fix.

Read our ex parte filing summarizing the meeting.