FCC Neutrality Rule Fights for Life from Weak Position
To the DC policy brokers and policy makers, this is like blood in the water for a shark. Genachowski has put himself in a weak position with his support of this rule and going to battle from a position of weakness makes for great sport in Washington, but not necessarily for Genachowski.
Contributing to that position of weakness is the fact that this is a transparent and blatant attempt to circumvent the federal courts that said that the FCC doesn't have the authority to regulate the Internet. The fact that they're calling it something slightly different doesn't mean it's not regulation; it's just got a different name.
And then there was that resolution approved by a large bipartisan majority of Congress telling the FCC not to exceed its authority. While it wasn't a law prohibiting any specific action, Congress will still view this as a slap in the face and a direct rejection. As you might expect, Congress, being the body that's officially in charge of passing legislation, is unlikely to take kindly to the FCC's slap.
While you can expect to hear a lot of politically correct words now that the rule is public the fact is that a small federal agency attempting to legislate on its own does so at its peril. Congress can simply pass a motion of disapproval and this rule cannot take effect. But worse things can happen-remember Congress passes budgets every year. Lawmakers may not think fondly of the FCC at budget time.
Meanwhile, there are the courts. The DC Circuit Court will need to wait for a complaint from someone, but there are plenty of someones to do the complaining. While I don't know for sure who is going to claim what in any potential court action, it's very clear that this rule was intended to circumvent the Comcast decision by dreaming up a new power to regulate the Internet that has never been granted to the FCC by legislation or by a court decision. It's easy to imagine the incredulity of the judges when they hear the FCC's lawyers explain how this is really OK.
So looking at the bottom line, what does this mean to Net Neutrality? Nothing. All the regulation will accomplish is to saddle U.S. Internet providers with new regulations. Foreign Internet providers are outside of the FCC's jurisdiction. How this will help the U.S. providers compete is an interesting question. The losers will be wireless Internet users who will (perhaps) lose a few of the protections they have now.
It's also not clear what this means to Net Neutrality because nobody, including the FCC really seems to appreciate what it means. While we won't know what Net Neutrality version is actually making its way around inside the mind of Chairman Genachowski until we have a chance to review the rule in detail, we can get hints that it's a so-called "neutral" internet with very un-neutral features such as tiered pricing, restrictions on wireless Internet users and loopholes that may allow paid priority. It seems like this rule needs some more time on the drafting table. Perhaps after the FCC comes back, soundly whipped, it'll come up with an approach that's actually permitted by law or more likely just drop the idea.