The Federal Communications Commission published its “Open Internet” decision on Dec. 23 just two days after the 3-2 party line vote to impose network neutrality rules on Internet service providers.
The FCC rarely publishes its decisions this quickly. After the rule has been published there is usually a 60-day delay before the rule appears in the Federal Register and the rule officially takes effect. The rush to publish the decision appears to be an effort to get the ruling into the Federal Register before lawmakers and industry opponents have a chance to act.
Congress has adjourned for the holidays and when it reconvenes in early January it will be preoccupied with organizing the new Senate and House of Representatives elected in November. The federal courts are also adjourned and it may be several weeks before a judge will be ready to hear motions for an injunction that would keep the rules from going into force.
It’s clear that FCC Chairman Julius Genachowski, who has shown that he is wise in Washington’s ways of administrative infighting, published the new rules early to give them a chance to see the legal light of day. It would be easier for lawmakers and litigators to squelch the rules before they become official regulations than after they are published in the Federal Register.
But whether this maneuver will work remains to be seen. If Genachowski can move fast, so can ambitious lawmakers or industry opponents who employ top notch lawyers who know how to get the attention of federal judges. While Genachowski may have bought a few weeks of life for the new Network Neutrality regulations it seems doubtful they survive long enough to have any material effect on service providers or on Internet users.
So if the rule goes into effect as written, what happens? Initially, not much will change. Cable providers will still be able to offer tiered pricing; Comcast will still be able to slow down BitTorrent in the name of network management; you’ll still get spam offers for nostrums to enlarge various body parts.
But that’s what appears on the surface. Because the FCC exists in Washington, the ability to regulate translates into the ability to control. While Chairman Genachowski’s intent to protect the consumer against some of the more egregious practices of ISPs is surely well intentioned, this is still Washington, where the road to Hell paved with good intentions.
Once given control, the FCC will surely assume more control over the Internet given time. What the result of that will be remains to be seen, but likely it will include control (or attempts to control) the content of Web sites, reports to be completed by ISPs and filed with the FCC about how they’re not preventing access to legal destinations on the Web, perhaps even licensing of ISPs or even providers. All of these powers are fraught with danger for everyone who favors the free flow of ideas and content on the Web.
But while that’s one future, it’s not the only future. It’s still more likely that the rule will never be allowed to go into effect. First, this was very much Genachowski’s pet project. The other two Democratic members of the Commission gave lukewarm support at best, with one only providing partial concurrence. The two Republicans opposed it.
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.