From the executive summary of public comment to FCC GN Docket No. 14-28., Approaches to transparency aimed at minimizing harm and maximizing investment (by David Clark, Steve Bauer, and kc claffy):
Embedded in a challenging legal and historical context, the FCC must act in the short term to address concerns about harmful discriminatory behavior. But its actions should be consistent with an effective, long-term approach that might ultimately reflect a change in legal framing and authority. In this comment we do not express a preference among short-term options, e.g., section 706 vs. Title II. Instead we suggest steps that would support any short-term option chosen by the FCC, but also inform debate about longer term policy options. Our suggestions are informed by recent research on Internet connectivity structure and performance, from technical as well as business perspectives, and our motivation is enabling fact-based policy. Our line of reasoning is as follows.
- Recent discourse about Internet regulation has focused on whether or how to regulate discrimination rather than on its possible harms and benefits. For four reasons, we advocate explicit attention to possible harms, their causes, and means to prevent them. First, the court has stated that while the FCC cannot ban traffic discrimination unless it reclassifies Internet access providers under Title II, the FCC does have the authority to remedy harms. Second, a focus on harms provides a possible way to govern specialized services, which are currently not subject to traffic management constraints. Third, if the FCC chooses Title II, it will open up many questions about which parts to enforce, which will require a discussion of the harms vs. benefits of selective forbearance. Fourth, any new regulatory framework would be well-served by a thorough understanding of
potential harms and benefits that result from behavior of various actors.