Tech Daily [subscription required] reports on Chairman Powell's remarks at the NCTA convention:

These companies "do not know if some federal regulator is going to go in and declare you as something akin to telephone companies and all that that entails," including rules on open access to the broadband infrastructure, Powell said.

This is, in part, the regulatory uncertainty that the Brand X case brought about, but also there is a related point about regulatory potentiality. Because the legal signifiers, "telecommunications service" and "information service," no longer match up to the underlying technological reality, the categories take on a fluidity that makes the potential for regulation ever-present. It of course depends on the will of the regulator, but in Brand X the FCC's will was so weak -- it didn't even ask for a primary jurisdiction referral! -- that the Ninth Circuit filled the void.

The Chairman is of course right that this regulatory potentiality is a disincentive for capital devotion to broadband. I increasingly think that so long as these legal categories exist, it will be so.