WASHINGTON D.C. — With its Notice of Inquiry (NOI) issued earlier this month, the Federal Communications Commission (FCC) began its final hasty steps toward promoting the Agency's "open Internet" agenda. Instead of working deliberately to further its larger goals, however, as PFF Senior Adjunct Fellow Charlie Kennedy points out in his new paper, "On Our Way to the Third Way: The FCC's Notice of Inquiry on Internet Regulation," the Commission is really only interested in one thing — regulating the Internet through its so-called "Third Way" proposal.

It is widely recognized that the Comcast decision slowed the Commission's quest to impose prophylactic rules for the Internet. Though the Commission's NOI asks how, post-Comcast, it can best advance universal service, privacy, access to communications for disabled individuals and security on the Internet, the author believes Comcast did not affect the Commission's authority to support those goals. It did, however, put the Commission on loose footing to address "harmful practices by Internet service providers." In other words, it greatly threatened its desire to impose Net Neutrality requirements on broadband networks.

The NOI reveals an FCC actively looking for a way around this legal impediment. "Ever since the Commission first announced its Net neutrality initiative, critics have effectively attacked its threadbare policy rationale and doubtful legal basis," states Kennedy. "The Third Way would reverse the Commission's longstanding classification of broadband Internet access as an unregulated information service, not on the basis of new facts, but simply because Comcast had made the former classification an obstacle to the Commission's policy agenda."

Disturbingly, the author notes that the timing and rapid comment schedule of the NOI suggest that the agency is bent on trying to "ram reclassification through as quickly as possible so that the 112th Congress—which seems likely to be even more hostile than the current Congress to the imposition of net neutrality regulation by the FCC—will be presented in January with a regulatory fait accompli." If that regulatory end-run around Congress succeeds, "it will be remembered for decades as a pivotal moment in the decline of the rule of law and the rise of a regulatory bureaucracy."

Kennedy concludes that "Reclassification under the 'Third Way' will also be the beginning of the Internet's 'Lost Decade' (or more) of stymied investment, innovation, and job creation as all sides do battle over the legality of reclassification and its implementation."

The paper may be viewed here. Charlie Kennedy is available for comment. Please contact Mike Wendy at mwendy@pff.org for more information.

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