Written with Jerry Ellig.
Chairman Genachowski’s net neutrality announcement today was very short on details. What we learned is that the Chairman plans to buck Congress and the courts in a drive to regulate broadband. He is proceeding against the wishes of hundreds of members of Congress from both parties that have written the FCC demanding that it not adopt net neutrality rules until Congress has an opportunity to review the matter. Also, since he has announced that he will not seek to reclassify broadband as a regulated telecommunications service, he seems to be resisting the D.C. Circuit Court of Appeals, which told the FCC earlier this year that it lacked the authority to regulate broadband.
Genachowski’s remarks gave us only a thumbnail sketch of how the rules he’s advocating the FCC adopt. We don’t know what authority would undergird new rules, and we don’t know what the chairman means when he says that the new rules would prohibit “unreasonable” discrimination of content by service providers. The devil is in those details, and they seemingly won’t be available until the FCC adopts the rules at its December 21st meeting — days before a new Congress is sworn in.
While taking reclassification off the table is a welcome compromise from the chairman, we don’t understand the rush to action. Why the midnight announcement last night? Why the limited announcement today? Why not allow the new Congress to take up the matter?
Having chosen to act, however, it’s “put up or shut up” time. Chairman Genachowski said the broadband providers have incentives to act as gatekeepers to the Internet and have prevented consumers from using the applications of their choice in the past. But it takes more than these assertions to justify a new regulation. Any net neutrality order needs to offer a coherent, logical theory that explains why broadband providers face systematic incentives to act in non-neutral ways that have no offsetting consumer benefits. And it needs to back up that theory with rigorous empirical evidence that proves a widespread problem exists — not just a repetition of the same handful of anecdotes about bad actors.
It’s heartening to see that Chairman Genachoswki believes wireless broadband is at a different stage in its development and should be treated differently from landline broadband. But insisting that wireless is too different invites a sleight of hand trick that would allow the FCC to claim that broadband faces insufficient competition because wireless doesn’t count. The commission has already done this in its National Broadband Plan, which dismisses third generation wireless as a competitor because it allegedly isn’t fast enough. This stacks the deck in favor of regulation by making it easier to claim that wireline broadband doesn’t face enough competition.