"Last September 29, I published an essay titled, "Thinking the Unthinkable: Imposing the 'Utility Model' on Internet Providers." Here's what I said then was unthinkable: "It now looks possible that FCC Chairman Tom Wheeler and his two Democrat colleagues, Mignon Clyburn and Jessica Rosenworcel, might actually vote to classify broadband Internet service providers (ISPs) as common carriers under Title II of the Communications Act."

At the time, I thought the "thinking the unthinkable" title was clever. But, deep down, I didn't really think the FCC actually would choose to subject today's Internet providers to the same public utility-type regime that was applied in the last century to the monopolistic Ma Bell or to today's electric utilities. But now the FCC's Democrat majority is poised to do just that - even though the almost all regulatory economists agree there has been no evidence of market failure or demonstrated consumer harm.

In the nearly forty years that I have been heavily involved in communications law and policy, including serving for a time as FCC Associate General Counsel, this is certainly one of the most momentous decisions of the agency - and, undoubtedly, one of the most misguided and likely harmful ones. It was only little more than a decade ago that the FCC formally decided, following the lead of deregulatory policies developed during the Clinton Administration, that broadband Internet providers should not be regulated under the Title II utility regime so as not to stifle broadband investment and innovation. The remarkable growth of the Internet in all its various dimensions has demonstrated the wisdom of that decision to apply 'light-touch' regulation to Internet providers.

This progress is being put at risk on the basis of conjectured harms that might occur in the future if the FCC doesn't regulate now. This is backwards thinking for Internet policy in the digital age. But it is the thinking that now prevails among the Commission's three Democrats, led by FCC Chairman Tom Wheeler. I understand that the Commission majority will say that it intends to forbear from applying all of the Title II regulatory requirements - although its ability to succeed legally in this endeavor is in substantial doubt. In any event, driven by the zeal of pro-regulatory forces that now appear to have gained dominance at the Commission, the agency will leave in place for the Internet the core utility requirements of rate regulation, non-discrimination, and more.

What was once unthinkable is now not only thinkable, but likely - and likely to inflict material harm on consumers and the Internet unless reversed in court or blocked by Congress."