I discussed the extent to which, considering the substantial technological and competitive developments since 2015, the proposal to classify Internet service providers as “telecommunications carriers” subject to Title II public utility regulation is even more irrational now than it was then. [...] As but one indication that the Commission’s proposal would be considered a major question of vast economic and political significance, I pointed to Chairwoman Rosenworcel’s public statement, in announcing the proposed rulemaking, inviting proponents of the proposal “to make some noise” and “raise a ruckus.” See my commentary in The Regulatory Review, October 30, 2023. [...] I stated that I have over 45 years of experience in communications law and administrative law generally, and I have served as Chair of the ABA’s Section of Administrative Law, a Public Member of the Administrative Conference of the United States, and a Fellow of the National Academy of Public Administration. [...] In doing so, the draft order says, to the extent uses of network slicing fall outside of BIAS, “we will closely monitor these uses to evaluate if they are providing the functional equivalent of BIAS, being used to evade our open Internet rules, or otherwise undermining investment, innovation, competition, or end-user benefits in the Internet ecosystem.” [Para. [...] I said that while ‘network slicing’ is just one technological advancement that happens to be highlighted, the way the draft addresses it, inviting arbitrary and capricious decisionmaking, is emblematic of why and how the Commission’s proposal is likely to suppress or delay other technological advancements, both wireless and wireline, to the detriment of consumers, the nation’s economy, and our nat.
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