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.