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


Terminator 2, Carolco Pictures

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.