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Don’t break the Internet!


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What the Heck is Title II?

There’s a debate raging about how the FCC should regulate the Internet. Some advocates have pushed for “Title II.” That’s code for 1930s-style utility regulation. Title II has put the FCC squarely in the middle of the Internet — right beside the NSA. It saddles the Internet with price controls and other heavy-handed rules from a thankfully long-gone era. The debate over Title II isn’t a debate over net neutrality, which is why many net neutrality proponents actually oppose Title II. Instead, it’s a debate between a vocal minority that wants greater government control over broadband companies, and defenders of a bipartisan consensus around a “Hands Off the Internet” approach.

Why is Title II a bad idea?

Here's the short version. Title II will crush broadband investment, and it doesn’t even ban the practices, like fast lanes, that its advocates worry about. It will hurt startups by saddling them with excessive regulation, and it will protect big broadband companies from new competitors, leaving consumers with even fewer choices. Title II will also hurt the underserved by slowing deployment in minority and rural communities. And it has vastly increased the FCC’s powers over the Internet:

You can’t have “just a little Title II” any more than you can be “slightly pregnant.” The ensuing decades of litigation and political bickering will be a boon to lawyers, but not to anyone else.

If you're ready to speak out against Title II then make your voice heard!

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You may have heard a different story from other groups; if you're not convinced then scroll on dear reader, because...

There's a lot of myth-busting to be done.


Broadband should be a public utility.


Public utilities are lousy at delivering high-tech services.

What’s the difference between water and the Internet? Internet gets faster, cheaper, and more innovative over time, while water... pretty much stays the same. Water, electricity and other utility providers charge a lot for standardized products. They’re slow to innovate because they’re monopolies, and regulation protects them from competition. Broadband providers are constantly pushing the boundaries of technology to keep pace with exploding demand. Now that the FCC is regulating broadband like you regulate water, competition will soon evaporate — and with it, the incentive to keep upgrading networks. Your water stays the same, and so does your electricity, but do you really want your Internet frozen in time?

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Everyone on “Team Internet” agrees on the need for Title II.


Even net neutrality proponents oppose Title II — because this debate isn’t about net neutrality anymore.

Google, Facebook, the NAACP, and other net neutrality supporters didn’t join the push for Title II. They understand that 1930s-style utility regulation won’t threaten just broadband, but the entire Internet. In essence, they wanted to maintain the “Hands Off The Net” approach begun under the Clinton Administration. That bipartisan approach unleashed unfathomable innovation and made possible the staggering $1.3 trillion in broadband investment that built today’s networks. Title II will slow down progress across the Internet.

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Title II will help minorities and the underserved.


Title II will hurt the underserved most by chilling network investment in their communities.

The NAACP, the Communications Workers of America, and 42 leading minority groups know better. They’ve urged the FCC not to abandon the FCC’s long-standing approach of “vigilant restraint” taken by Democrat Bill Kennard and Republican Michael Powell. The FCC’s first two African-American Chairmen knew that underserved groups would benefit most from investment in broadband. They were right – and their restrained approach has made broadband companies far and away the largest source of private investment in the U.S. Title II will choke the investment needed to finish bridging the Digital Divide.

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Title II will help startups.


Title II will hurt small Internet startups. Costly regulations hit small businesses hardest, usually to the benefit of established, better-funded giants.

Even though no broadband provider is actually blocking web content (contrary to popular assumption), a clear ban on blocking might make sense, just to be safe. But that could have been done without Title II. What upstart companies do need are clear, bright-line rules that keep the government’s hands off their content businesses — not confusing rules that take huge legal teams to decipher. Invoking Title II has opened the door to FCC regulation of all web businesses, creating a cloud of uncertainty that will choke investment in startups. Startups also need better broadband service for all users, a goal Title II is undermining.

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Title II will encourage broadband competition.


Title II will actually protect cable and telcos from competition.

The bipartisan decision to protect broadband from the extreme regulatory intervention of Title II was essential to encouraging telcos to compete with cable companies. That’s why 92% of U.S. homes have two strong broadband pipes and U.S. fiber deployment is twice that of Europe. Google Fiber and other small companies are trying to build yet a third pipe, but the regulatory costs and legal uncertainty of Title II will probably kill their plans. The fastest way to destroy a vibrant and expanding market is to inject an overbearing regulator, the chaos of legal uncertainty, and the kind of regulatory capture we’ve come to expect from the FCC. That doesn’t require corruption — it’s just how government works when laws are vague and bureaucrats have too much discretion.

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Only Title II can protect us from “Fast Lanes”


Title II doesn’t ban fast lanes, and actually might make paid prioritization more likely.

As draconian as Title II is in other respects, it still doesn't allow the FCC to ban paid prioritization. In fact, the FCC’s authority to do so under Title II is pretty much the same as the authority it claims under Section 706 — which is why all this “We Need Title II Now!” stuff was so disingenuous. But what Title II will do is saddle the Internet with retail price controls and other new burdens. These might well force broadband providers to turn to paid prioritization as a new revenue source.

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Netflix championed “real” net neutrality.


Netflix was just playing politics to gain a business edge.

Netflix talked about “strong net neutrality,” but was really just trying to cut its costs. Understandably, Netflix wants more broadband capacity and faster connections to its customers. But instead of simply offering to pay for these benefits (as it’s always had to do), Netflix has promoted a Rube Goldberg regulatory regime to offload those costs onto broadband providers. That means all broadband subscribers have to pay, whether they use Netflix or not. Netflix is gaming the system to lower its costs — just as it tried to do with the Post Office back when it shipped DVDs. That’s great for Netflix, but not for the rest of us.

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We Can Trust the FCC to Get It Right.


The FCC won’t be able to "go easy" on Title II and has a long track record of overreaching.

There’s just no middle ground on Title II: Now that the FCC has invoked it, it will have a hard time undoing the law’s chilling effects on investment and innovation across the Internet. Those pushing Title II should have known better than to trust the FCC. The Commission has a long history of overreaching, from trying to to stamp out copyright infringement to “cleaning up” television and helping favored companies. Citing the FCC’s long history of being manipulated by the companies it regulates, some leading net neutrality advocates have even called for the FCC’s “demolition.” Some also claim Title II is less dangerous than Section 706 as the basis for new net neutrality rules. But invoking Title II doesn’t stop the FCC from using 706, too. So the FCC has two blank checks to regulate the Internet instead of one!

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You don't have to be a cable executive to fear Title II.

Smart people across the political spectrum have long understood that applying analog regulations to the digital world is a bad idea.
(CC BY 2.0) Olivier Ezratty

Tim Wu

Originator of the term “net neutrality,” Columbia law professor, and former chairman of Free Press.

While [Title II’s] structural restrictions like open access may serve other interests, as a remedy to promote the neutrality of the network they are potentially counterproductive. Proponents of open access have generally overlooked the fact that, to the extent an open access rule inhibits vertical relationships, it can help maintain the Internet’s greatest deviation from network neutrality.

Source: The Journal on Telecommunications and High Technology Law

Velocity Venture Capital

Jack Crawford

General partner at Velocity Venture Capital.

“If the Internet had been regulated like water or gas, I highly doubt we would have seen the advent of things like Google Fiber or connected cars.”

Source: CALinnovates

(CC BY-SA 2.5) European Graduate School

John Perry Barlow

Founding member of the Electronic Frontier Foundation and lyricist for the Grateful Dead

“Governments of the Industrial World, you weary giants of flesh and steel… [y]ou claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don't exist. Where there are real conflicts where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.”

Source: EFF

(CC BY 2.0) Peretz Partensky

Blair Levin

FCC Chief of Staff, 1993-97 and author of the 2010 National Broadband Plan

“[Broadband] networks are staggeringly expensive. Breaking free from the status quo requires both creative and viable economic models. After all, the broadband operators are businesses, not charities. If Communities do not work to lower barriers to entry and enable efficient builds, the necessary new investment simply will not happen.”

Source: Wired

(CC BY 2.0) Joi Ito

Lawrence Lessig

One of the originators of net neutrality, Harvard law professor, founding board member of Creative Commons

“It's Time to Demolish the FCC... Only… when regulation is crafted as narrowly as possible… can regulators serve the public good, instead of private protection. We need to kill a philosophy of regulation born with the 20th century, if we're to make possible a world of innovation in the 21st.”

Source: Newsweek

(CC BY 2.0) Hugh D'Andrade

Electronic Frontier Foundation

The original non-profit organization defending civil liberties in the digital world.

“Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T… ‘[N]et neutrality’ might very well come to be remembered as the Trojan Horse that allowed the FCC to take over the Internet.”

Source: EFF


NAACP and the Communications Workers of America

The leading civil rights organization for minorities in the US, and the largest communications labor union.

“The best Open Internet policy is quite simple: the Commission should create incentives for investment in truly high-capacity networks that provide everyone with the bandwidth and service quality they need to access the data-rich and video-intensive applications on the Internet.

Source: CWA

(Public Domain)

Bill Kennard

FCC Chairman 1997-2000

“In a market developing at these speeds, the FCC must follow a piece of advice as old as Western Civilization itself: first, do no harm. Call it a high-tech Hippocratic Oath.”

Source: FCC

Clearing Up the History

The fight over Title II isn’t between Republicans and Democrats. It’s between a radical fringe and defenders of a bipartisan consensus.

That consensus formed in the '90s. Sensible politicians agreed over maintaining a "light touch" regulatory approach to the Internet in order promote broadband investment and keep Internet services free of unnecessary regulation.

In fact, Clinton and Gore tried to move beyond the rigid approach of Title II, but their Telecommunications Act of 1994 never took off. So, after Congress finally passed the backwards-looking 1996 Act, Bill Kennard, Clinton’s second FCC Chairman, started walling the Internet off from Title II.

Had Gore won the 2000 election, Kennard probably would have done largely what Chairman Michael Powell did under President Bush: finally declare that the “Era of Title II is over” — just as Clinton famously said “The Era of Big Government is Over.”

Instead of Title II, We Want:

A Clear Line between the Internet and Public Utilities

Re-interpreting the complex definitions of the Act and trying to apply 1930s regulations to today’s Internet inevitably makes clear lines impossible. The FCC made a serious mistake in re-opening Title II.

To Maintain “Vigilant Restraint”

That was FCC Chairman Bill Kennard’s slogan. It remains the right approach to policing the Internet. Enforce existing laws. If and when those prove inadequate, look for narrowly tailored solutions – scalpels, not sledgehammers!

Narrowly Targeted Congressional Action

The FCC’s legal authority over net neutrality is hotly contested, but Congress can fix that. Democrats and Republicans should join in a bipartisan compromise that sets out clear, but specific and narrow, authority over core net neutrality concerns. Congress should restore the "light-touch" approach to regulation and bar the FCC from ever applying Title II to the Internet again. It should also clarify that “promoting broadband” can’t be a blank check for the FCC to regulate anything it wants to — lest the FCC use Section 706 to wield even greater power than under Title II.

To Unleash Broadband Competition

The “light-touch” approach that has governed the Internet since the 1990s was essential to driving investment in broadband, and driving telephone companies to compete with cable companies. They continue forcing each other to upgrade their networks.

But we need a third pipe (like Google Fiber) and faster wireless, too. Let’s remove the local red tape that makes upgrades hard and new entry into the broadband market even harder. The Federal government should let go of some of the spectrum it isn’t using — to make wireless broadband faster.

Smart Infrastructure

Before rushing to build government-owned broadband networks (What Would Snowden Say?!?), cities should install conduits under streets that any broadband company can rent. That’s a smart Democrat idea, which the Obama administration has embraced, but not followed through on. That’s the cheapest, smartest way to promote real broadband competition — without putting taxpayers on the hook for running or upgrading evolving broadband networks.

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About the Dont Break the Net Coalition

We're a bipartisan, “big tent” coalition united by an earnest desire to preserve permissionless innovation. Our opinions may differ on what to do about net neutrality, and on a wide range of other issues, but we’re all united by our opposition to imposing Title II’s utility regulations on the Internet. We’re tired of this debate being so polarizing and unconstructive. The FCC has better things to do than spend years fighting about Title II — like actually clearing barriers to competition and promoting investment in broadband.

About TechFreedom

TechFreedom, a non-profit technology think tank in Washington, DC, designed and built this site. Actually, we forked it from the Battle For the Net people and changed up the message and images! We too support the open source software movement. Please, Fork us as well. Everything on the site is free for you to use under a Creative Commons Share-Alike, Attribution license.

Do you take money from Telcos?
It's a fair question, and the answer is yes. But we're also funded by content providers on the other side of the net neutrality debate. Our “big tent” of support reflects the diversity of our work across a wide range of issues — from surveillance and free speech to telecom and consumer protection law — and our grounding in philosophical principles. We don’t do work for hire.

So you are a bunch of big-business shills, right?
We're a non-profit, idea-driven think tank. No one is feathering their nest with a huge salary and we could all make a lot more money working in the private sector rather than trying to make the world a better place. You might want to call this site and our work astroturf (phony grassroots), the product of a cabal of corporate shills. We don't think that's fair. None of our donors had any role in drafting this site. Do you have to agree with our position? No. But do us the kindness of not dismissing our work as a fraud.