FSF Suggests 'Commercial Reasonableness' Broadband Standard; AT&T, Tech Freedom, Etsy File

Free State Foundation plugged a "commercial reasonableness" standard with "rebuttable deregulatory presumptions" for FCC case-by-case review of open internet disputes if it concludes it has broadband regulatory authority. The agency "should require findings, based on clear and convincing evidence of demonstrated market failure and consumer harm, before any enforcement action is taken against an ISP," said Free State filings (here, here) this week in docket 17-108 on meetings with Commissioner Brendan Carr and an aide to Chairman Ajit Pai. It opposed broadband regulation based on Title II or Section 706 of telecom law. Meeting with the Pai aide, AT&T argued for moving from a Title II to Title I classification and cited FCC authority to pre-empt state broadband regulation, something Verizon recently touted (see 1710190057). In meetings with Commissioner Mike O'Rielly and Pai Chief of Staff Matthew Berry, Tech Freedom discussed two "sleeper issues" it said may force Congress to act: did Title II broadband classification constitute a "major question" requiring legislative authorization, and what does Section 230(c) of the Communications Decency Act mean for FCC enforcement of a no-blocking rule and implementation of the Telecom Act? Hosting Commissioner Mignon Clyburn in New York, Etsy opposed undoing Title II regulation that it said helped its 1.8 million sellers -- most operating out of homes -- utilize its platform. To facilitate public review of the record, an FCC public notice made all filings in the docket available via links to downloadable files.