The White House budget office signed off on the Federal Communications Commission's net neutrality rules this week. According to CNet, that means that the regulations, which passed the Commission on a 3-2 vote last December, could take effect in a few months. Of course, the FCC will almost certainly still have to deal with a slew of lawsuits from the private sector, as well as various challenges from the legislative branch.
Legislative challenges aren't likely to go anywhere while Democrats control either the White House or a branch Congress, but there's a good chance—perhaps even better than 50 percent—that the agency's latest attempt to enforce neutrality regulations will end up like its last attempt: struck down in the court system. As I recounted in Reason's March issue, the administration's long and convulted quest to pass net neutrality has long been something of an exercise in face-saving, an effort to give some of its most ardent supporters something they desperately wanted, despite a lack of real-world justification for the policy.
As Penn Law's Gerald Faulhaber notes in his recent paper on the economics of net neutrality, advocates for the policy have never been able to demonstrate a pattern of violation. "One has to read the R&O [report & order] very closely to find any empirical support whatsoever that any of the suspect behaviors the FCC seeks to prevent have actually occurred," he writes. And even then, the agency names just four violations, one of which was resolved before the FCC interfered and another of which never actually resulted in a formal complaint to the FCC. Faulhaber continues:
In over a decade, there were only four examples of purported misconduct (one which was denied by the courts and another which didn't even rise to the level of a complaint) for the entire broadband ISP industry. By any standard, four complaints about an entire industry in over a decade would seem to be cause for a commendation, not for restrictive regulations.
The FCC acknowledges this lack of evidence of actual wrongdoing by referring in the [regulation] to the proposed rules as "prophylactic," or preventive. Their purpose, therefore, is to prevent things from happening that haven't actually happened thus far. Further, the R&O acknowledges explicitly that "…[the rules] incorporate longstanding openness principles that are generally in line with current practices and with norms endorsed by many broadband providers." If the rules are indeed aligned with current practices and norms, then why, it might be asked, do we need them?
Why indeed—especially if the rules may ultimately be struck down—except perhaps to please a pro-Obama constituency highly invested in seeing the rules passed?
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