Citing nefarious, and completely imaginative, examples of “Big Mobile” and “Big Cable” shutting down access to the Internet, the FCC voted today to move towards greater regulatory oversight of Broadband Internet through Net Neutrality principles. (indeed, even the HuffPo is saying in the most hyperbolic way that this is “The Most Important Free Speech Issue of Our Time“)
The public is still waiting for the specific language of the regulatory order (FCC Commissioners only recevied it themselves just before midnight last night), so I cannot comment on the language that lawyers are sure to argue over for years to come. However, based on the comments of the FCC Commissioners, both pro and con, on the order I have come to some preliminary conclusions:
1) Those who think this regulatory framework “preserves” the openness of the Internet are wrong. This fundamentally changes many aspects of the infrastructure of the Internet, even if it is below the radar. My foremost concern is that paid prioritized access will be barred. So, count Level3 among the winners here today. How is paid prioritized access a bad thing? If I want a quality experience with Netflix or Amazon or Hulu, I need access to a network that prioritizes video over someone’s email, who won’t be harmed if their message is delayed by less than a second. If my video is delayed less than a second, guess what, jitter occurs. And if too much jitter occurs then I’m turning off my video. How is that good?
2) The legal framework on which the majority of FCC Commissioners are basing this argument is void of reasoning. The DC Appellete Court struck down the Commission’s authority in this matter and the FCC’s response is to thumb their noses to the Court and move forward unilaterally when members of Congress in both parties recognize the FCC’s overreach. Chairman Genachowski needs a rulemaking 101 refresher course. As Commissioner Attwell-Baker points out, the Commission is NOT given an affirmative grant of authority to regulate in this area by the Telecom Act of 1996. Therefore, there is no basis on which the FCC can stand on to make these rules.
It doesn’t matter how well-meaning these rules may be, but as a non-legislative body, the FCC must have been granted the authority to regulate in this area specifically from a legislative body (Congress) and it has not received such authority. As Commissioner McDowell pointed out, why would have Congress introduced legislation just a few months ago addressing this very issue if the FCC already had direct regulatory authority in this manner?
3) The FCC is putting the onus on the ISPs of the world to prove that their network management practices do not harm the consumer. This is backwards. Companies need the freedom to innovate and if they go too far in the harming of the consumer than we must revist the question “are there adequate enforcement or consumer protection mechanisms in place to curtail infringement of the rights of consumers?” This new regulatory regime is analagous to a digital “precautionary princinple” and has the potential to open up myriad and frivolous claims by consumer groups who wont be happy until the Commission IS the ISP, or at least a highly regulated public utility.
This is just the end of the beginning though, as it looks as if both sides (industry and the consumer leftist groups) are lawyering up to take this fight to the courts. So it appears that the only folks happy with this vote are those that will wrack up billable hours duking out the definition of “reasonable network management,” among other opaque language in the forthcoming order.