2
Application of Title II also removes an obstacle to most
of the Commission’s reliance on § 706 of the
Telecommunications Act of 1996, 47 U.S.C. § 1302, namely
any rules that have the effect of treating the subject firms as
common carriers. See Verizon Communications Inc. v.
Federal Communications Commission, 740 F.3d 623, 650
(2014). But the limits of § 706 itself render it inadequate to
justify the ban on paid prioritization and kindred rules.
I discuss § 201(b) and § 706 in subparts A and B of part
II.
III.
The Commission’s decision to forbear from
enforcing a wide array of Title II’s provisions is based on
premises inconsistent with its reclassification of broadband.
Its explicit refusal to take a stand on whether broadband
providers (either as a group or in particular instances) may
have market power manifests not only its doubt as to whether
it could sustain any such finding but also its pursuit of a “Now
you see it, now you don’t” strategy. The Commission invokes
something very like market power to justify its broad
imposition of regulatory burdens, but then finesses the issue
of market power in justifying forbearance.
Many of these issues are closely interlocked, making it
hard to pursue a clear expository path. Most particularly, the
best place for examining the Commission’s explanation of the
jewel in its crown—its ban on paid prioritization—is in
discussion of its new interpretation of 47 U.S.C. § 201. But
that explanation is important for understanding the
Commission’s failure to meet its obligations under Fox
Television, above all the obligation to explain why such a ban
promotes the “virtuous cycle,” which (as the majority
observes) is the primary justification for reclassification under
Title II. Thus a discussion critical to part I of this opinion is
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