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FCC and Network Neutrality

April 9th, 2010

Some months ago the FCC — now with a majority of Democratic commissioners — implemented network neutrality rules using it’s “ancillary” regulatory powers. I’m on record as a proponent of network neutrality, taking the general position that the internet should be treated like a common carrier and/or utility, and that the only thing providers should be in the business of is delivering reliable and fast service. The moment providers become content filters is the moment their interests stop being aligned with the general good. Think of it like a road builder who also sold cars… don’t you think you’d build your roads to benefit your cars? After a failed effort to enact a network neutrality statute in Congress, the FCC stepped in, however a Federal Court has struck down the regulation taking us back at square one. But don’t worry, that’s a good thing.

You might be wondering how the overturning of a policy I support is a good thing, and the simple answer is process matters. The process matters because not all law is of equal value, and this particular regulation wasn’t the sort of foundation upon which you would want to build a free internet. To understand what I’m driving at, you need a basic understanding of the interplay between Congress, regulatory agencies like the FCC, and the Courts. Here’s a quick set of principles

  • Congress doesn’t act unless it needs to — This is generally true in all areas, but especially true in technology policy. Congress, for all its many faults, recognizes it’s the least good way of getting things done. It lacks expertise and is highly susceptible to outside interests whose goals are not always aligned with the public. As such, there are numerous mechanisms in Congress to ensure only a small fraction of bills get approved, even if they have majority support.
  • Regulatory agencies are expected to pick up the slack — Congress can sit on its hands because it has already setup numerous agencies to make the sorts of expert technical decisions Congress is not so good at. For example, the recent health care reform bill, while very long, will pale in comparison to the length of the regulations that will eventually be written to implement the same. Those regulations will largely come from the Department of Health and Human Services. When flaws are found in the original bill, it won’t be Congress that tries to fix it, it will be DHHS using its regulatory power.
  • Courts act as a check against undemocratic law making — Yes, for all you may have heard from conservatives about courts being undemocratic, it is their responsibility to ensure regulators do not overstep the authority granted to them by Congress. This is a challenging but critical task. Regulators are under heavy pressure from advocates, legislators, and the President to push the bounds of their authority to avoid spending political capital on enacting a statute. It is the Courts job to ensure that this doesn’t get out of hand.

The interplay between these three forces is subtle and complex, and I don’t claim to be anywhere close to an expert. But what I can speculate is that when network neutrality failed in the last Congress it was in part because would-be supporters didn’t feel the issue was sufficiently ripe. Why cast a potentially difficult vote when you can have the FCC do your dirty work for you? Now that the courts have ruled that the FCC lacks sufficient authority, the issue goes back to Congress where we can finally get a good sense of just what kind of political support exists.

In the meantime, the court’s decision tells us something else important: the FCC lacks authority to regulate the internet in whatever manner it sees fit. As anyone in the TV business will tell you, that’s probably a good thing from a content perspective, least we end up with such delightful concepts as “community standards” being forced upon us all. With clear limits on the FCC’s ancillary regulatory powers over the internet, Congress can now draft specific authority for the purposes of network neutrality while avoiding the pitfalls of creating a overbearing internet regulator, but also ensure a durable and lasting legislative framework for a free and open internet.

probonogeek Politics, Technology

  1. David
    April 9th, 2010 at 07:41 | #1


    I’ve talked with one or two other folks in town, and my understanding is that the DC Circuit is forcing the FCC to get the cojones to classify internet as title II (phone carriers).

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