First look: FCC moderation just an ‘illusion,’ says former commish

But Genachowski promises that the FCC would not hold onto the complete set of rules that govern telephone services. In an effort at moderation, he says the FCC would give up the power to enforce the strictest telephone provisions through a process titled “forbearance.”

“Third way” critics such as Robinson say “forbearance” does not turn the reclassification proposal into a moderate one.

“Even if you believe the FCC should have forbearance authority (as I do), you ought to be nervous about this transparently manipulative use of it to design a new tailor-made form of regulation,” he writes, noting that the forbearance power was designed to eliminate rules, not create them.

No matter if the FCC forbears on certain provisions, the “third way” plan still constitutes a power-grab, according to Robinson.

“By emphasizing the small number of provisions it seeks to enforce, the FCC would like to create the appearance of a restrained regulatory ambition,” he writes. “But numbers aren‘t important. What is important is the substance of those provisions selected and what that selection says about the shape of the ensuing regulatory regime.”

Genachowski unveiled the “third way” proposal after an appeals court decision in April made it more difficult for the FCC to point to a legal basis for enforcing net-neutrality rules.

Internet service providers recoiled at the “third way” idea and have since begun working, through the FCC and a trade association, to craft a solution to the net-neutrality question that does not involve placing broadband services under telephone rules, which they view as a “nuclear option.”

The “third way” proposal has been panned by most of the members of Congress, but the FCC says that the option is on the table, perhaps in part to maintain a bargaining chip it can use to spur on industry talks and shape their agreement.

Read Robinson’s full paper here.

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