The FCC’s Net Neutrality Proposal Is About Giving the FCC More Power

The key thing to understand
about the Federal Communications Commission’s new net neutrality
proposal is that it’s not strictly about net neutrality or fast
lanes or any of the other regulatory buzzwords you hear. Instead,
it’s primarily about giving the FCC more power and more authority
to regulate what sorts of business practices are acceptable for
broadband Internet providers.

The FCC, of course, is framing the rules as a kind of
light-touch approach that will give the agency discretion to
intervene only when really necessary, but what it really comes down
to is that the agency wants to be the gatekeeper in terms of
Internet provider innovation, and doesn’t want strict rules to
constrain its authority.  

This National Journal piece makes the point pretty
well:

The Federal Communications Commission is moving ahead with a
net-neutrality proposal, but no one knows exactly what business
practices it would ban. And for the FCC, that’s all part of the
strategy.

The commission wants a vague standard to allow Internet
companies to experiment with new business models, while giving the
agency authority to step in when it sees abuses.

A senior FCC official argued that “putting rigid rules in place”
would not let the Internet “evolve in a natural way.” 

But the official added that “the government has to be in a
position to oversee the Internet and intervene if it needs to.”

FCC Chairman Tom Wheeler has repeatedly extolled the virtues of
enforcing net-neutrality rules on a “case-by-case basis.”

Under his proposal, Internet service providers would be required
to handle traffic in a “commercially reasonable” way. The
commission has done little to explain what “commercially
reasonable” means.

Why would the FCC go out of its way to provide more detail about
what “commercially reasonable” means? It means whatever the FCC
decides it means someday down the road when the agency feels like
doing something, whatever that something may be. The agency of
course likes to emphasize that these sorts of vague guidelines give
the agency flexibility to avoid doing bad things, but that’s really
just another way of saying that the FCC doesn’t know what the rules
should be—it just knows that it should be in charge. 

A pretty good rule of thumb when it comes to federal authorities
is that they tend to leave, or create, as much wiggle room for
themselves as possible in any given circumstance. It’s why you’ll
rarely see the administration draw up a legal memo saying that the
president does not have the power to do something, and why agencies
tend to prefer vague rules that give them a lot of interpretive
leeway. They want to do what they want to do, and they don’t want
to create guidelines or precedents or rules that might get in the
way.