The FCC's New Net Neutrality Rules Aren't Public Yet, but Everyone Hates Them Already

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.