It’s hard to know exactly what to make of the
furor over the Federal Communications Commission’s (FCC) revised
net neutrality policy, because almost no one has officially seen it
yet. That includes the outraged liberal activists who are worried
that, if the agency allows Internet service providers (ISPs) like
Comcast and AT&T, to charge big companies for fast lanes,
everyone else will be stuck in crowded, sluggish slow lanes. That
includes that 100 Internet-content megacompanies—Microsoft, Amazon,
Facebook, Google, Netflix, and more—who signed a joint
letter last week slamming the new proposal. It includes the
group of big-time tech investors who wrote last week that they
opposed the rules. It
includes 11 U.S. Senators, who warned last week that they
opposed rules allowing Internet companies to pay for prioritized
service.
Officially, no one outside the FCC is supposed to have seen the
proposed rules, which are on circulation amongst commission members
and are not yet public. Nonetheless, virtually everyone seems
opposed to them, whatever they are.
The outcry has already prompted Wheeler to rewrite the proposal,
according to The Wall Street Journal, which
reported last night that the FCC is “revising proposed rules
for regulating broadband Internet, including offering assurances
that the agency won’t allow companies to segregate Web traffic into
fast and slow lanes.”
The Journal‘s report suggests that the agency is not
changing the proposed rules in a meaningful way. Instead, the focus
of the revision is to assure critics that FCC won’t wimp out on
oversight if and when the new rules go into effect. “In the new
draft,” the Journal report says, “Mr. Wheeler is sticking
to the same basic approach but will include language that would
make clear that the FCC will scrutinize the deals to make sure that
the broadband providers don’t unfairly put nonpaying companies’
content at a disadvantage, according to an agency official.”
In other words, Wheeler’s new proposal will underline what
appeared to be the subtext of the original proposal, which is that
the FCC would be putting itself in charge of deciding what
practices are and are not acceptable from the companies that own
and manage the Internet’s infrastructure.
When news of the FCC’s updated net neutrality first leaked last
month, an unnamed FCC official told
The Washington Post that ISPs would be allowed to
negotiate service deals with individual web content providers, but
with the important qualification that “in all instances, broadband
providers would need to act in a commercially reasonable manner
subject to review on a case-by-case basis.”
If these reports are right, then what Wheeler’s proposal does is
lay out some vague guidelines and then give the FCC the power and
the prerogative to decide what’s acceptable and what isn’t. The FCC
would end up determining what counts as “commercially reasonable”
and what counts as an “unfair disadvantage.” How would the agency
make that determination? We don’t have the proposal, so it’s
impossible to say, but given the agency’s history of expansive
regulations, and its emphasis on individual, case-by-case review,
my guess is that there’d be a lot of chin stroking involved.
It’s no wonder, then, that everyone is so upset. This is the
sort of bureaucracy-centric proposal that probably ought to
irritate everyone. Liberals who want clear restrictions on ISP
behavior won’t get them. And free-market advocates who would prefer
permissionless innovation free from arbitrary FCC intrusions won’t
get that either.
Indeed, it’s not even clear that if we knew what the proposal
said we would know precisely how it would work. Judging by the
reporting we have so far, the FCC would basically be appointing
itself the Internet’s Philosopher King, promising to do what’s Good
and Right for the Internet, whatever that may be at the time. No
one on either side ought to trust the FCC with that sort of
discretion.
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