"Easily dismissed" and "simply false on its face" was Federal Communications Commissioner Mignon Clyburn's response on Thursday to charges that the FCC's proposed net neutrality rules represent a throwback to old AT&T monopoly-era regulations. The Commission's plan is indeed to "reclassify" ISPs as common carriers, but then to "forebear" many rules contained in Title II of the Communications Act's common carrier toolkit—save those needed to keep ISPs from discriminating against applications and services they don't like.

The whole point of the approach "is to avoid applying any such old-world rules," Clyburn told the Media Institute. "Without forbearance there is no reclassification. You cannot have one without the other. Think peanut butter and jelly. Salt and Pepper. Batman and Robin. You get the picture."

We're not exactly sure how the Caped Crusader with crunchy spread and a dash of seasoning walked into this scenario. But we know why Clyburn is taking on net neutrality's chorus of critics. Last week 73 Democratic members of the House of Representatives and nearly all of that august body's Republicans signed onto statements opposing the agency's latest Open Internet scheme. That involves "reclassifying" ISPs from Title I "information service" providers to Title II "telecommunications" services on a limited basis.

So some FCC pushback was needed—and Clyburn clearly relishes that job, periodically blasting Comcast for ISP rate hikes and slamming Verizon for its super sized early termination fees. Here are the three main anti-net neutrality arguments that the Commish says don't hold water.

No days of yore

First, the FCC does not want "burdensome rules for broadband from a day which has long passed," said Clyburn "Rather, the Chairman [Julius Genachowski] is proposing that we re-establish the authority that the Commission and most observers thought we had as of the 5th of April, that bright and sunny day prior the DC Circuit’s decision in the Comcast case."

Actually, most observers concluded after oral arguments in mid-January that FCC authority over ISPs (used in this case to sanction Comcast for P2P blocking) was doomed. But it's certainly true that on April 5th the court confirmed that nothing in Title I of the law gave the agency the power to act as it had.

The new proposal "is thus not a power grab," Clyburn insisted, and "it's not a return to days of yore." The court decision "tied our hands about how to go about achieving this; we now have a limited but clear path to attain our modest but essential goals."

Second, she argued against the claim that the FCC needs signs of a "significant market shift" to reverse its earlier 2002 decision not to classify ISPs as telecommunications carriers. That was the gist of a Washington Post editorial published late last month:

"While agencies have broad latitude in reevaluating regulatory schemes, reversals should be linked to significant market shifts," the Post opined. "The facts do not support such a conclusion, and the FCC should not now try to shoehorn broadband into an existing—but incompatible—regulatory scheme."

But there's nothing in administrative law, Clyburn countered, that says that the FCC has to identify "significant market shifts" to change its course (and the Post editorial didn't even bother to define the concept). "The long and the short of it is that the Commission must simply provide a reasoned justification and not simply change course without explanation."

And the whole point of the FCC originally classifying ISPs as a Title I "information service," Clyburn noted, was to give the agency the "light regulatory touch" powers it might need to reign in ISPs, as in the case of Comcast's P2P throttling. So the intentions of the FCC towards the broadband market have not changed, just the circumstances under which the agency can regulate.

Uncertainty? Please...

Finally, the Commissioner dismissed complaints that the FCC's new classification scheme would cause "regulatory uncertainty" in the broadband market. In fact, were the agency forced to continue to look to Title I for regulatory powers over ISPs, it would have to cobble rules together from a confusing hodgepodge of sections from that law, launching perhaps half a dozen proceedings to get the job done.

With Title II, "we have both a clean process and, at worst, a colorable and straightforward argument in the courts," Clyburn contended. "The process would result in a reclassification of broadband connectivity to a telecommunications service—with a strong side of forbearance—and thus allows us to implement key features of our Broadband Plan. Just one proceeding can satisfy a series of desired outcomes."

And if common carrier rules are such a terrible thing, Clyburn pointedly asked, why does the wireless industry so often praise its fortunes under them? She quoted Verizon's recent proclamation that the FCC's "light regulatory approach" to mobile voice services "has worked, most importantly by preserving the incentives for wireless providers to invest in their networks, knowing that their own competitive decisions will determine their success or failure."

How, Clyburn noted, can these companies "praise the regulatory regime governing wireless, and on the other hand sound the alarm of 'uncertainty' for a nearly identical framework proposed for broadband connectivity? The level of uncertainty should be, at worst, equal."

Not one complaint

These counterpoints will be met by responses soon enough from both wired and wireless broadband providers. Last week we had a long chat with Steve Largent, CEO of CTIA - The Wireless Association, and CTIA's regulatory Vice President Christopher Guttman-McCabe. They sounded like they were both at the end of their tether.

"There's never been one complaint or harm that has been brought to the FCC or Congress or the wireless industry that would be addressed by net neutrality regulation," Largent insisted. And wireless broadband is more easily overloaded with data, and needs more network management, he added.

CTIA's boss also challenged the claim that the FCC's forebeared version of Title II would represent a "light regulatory touch." Even under the FCC's latest plan, these rules "would be burdensome and a heavy load to carry." Title II rules "were never intended for the wireless industry," Largent warned. "They were intended for wireline monopolies. And clearly, we are not a monopoly."

Looks like it's going to be a long time before references to the "days of yore" disappear from this debate.