Questioning whether new FCC network neutrality rulemaking process produces a legally supportable set of rules
A few weeks ago I wrote about the then pending FCC notice of proposed rulemaking concerning rules for the Internet. The FCC has now posted the proposed rulemaking and there is little to immediately worry or cheer about.
In the last column I mentioned that some politicians were trying to block rules even before they had seen what the FCC did. One of those politicians is Sen. John McCain (R-Ariz.) who announced on Oct. 22 that he was introducing the "Internet Freedom Act of 2009," which he said would keep the Internet free from government control and regulation.
This appears to be one of those bills whose titles would be considered to be a bit misleading - in this case the freedom appears to be for ISPs, not Internet users. (I say "appears" because I've not been able to find a copy of McCain's bill on his Web siteThomas, the U.S. government site that publishes bills that have been introduced into Congress. Nor can Google or Bing find a copy. This is in contrast to a new process at the FCC where the proposed rulemaking was published on the same day it was approved. In the past such publication could be months after approval.)
So, just what did the FCC say in its proposed rulemaking? Not all that much. They postulated a set of draft rules based on six principles and asked a bunch of questions.
Four of the 6 principles are based on the ones that the FCC published in 2005. These are the principles that the FCC used to tell Comcast to stop messing with BitTorrent. These are also the principles that Comcast is suing over -- claiming that these FCC principles are not actually legally adopted rules. The fifth principle would require nondiscriminatory treatment of content and the sixth would require that ISPs tell their customers what they are doing that might impact the other principles. The assumption seems to be that the result of this six-month long (or longer) process would be legally adopted rules. But, even if the rules are legally adopted, there is an open question as to their legality.
Regular readers of this column will know that I do believe in the power and importance of a neutral net -- neutral in the sense that an ISP cannot decide Internet winners and losers. Thus, I'm generally in favor of the principle behind the principles. But, I do note that, historically, government regulation tends to assume too much about how things work technically and, because of that, tends to become an impediment as technology changes. You do not have to look any further than the difficulty of applying the FCC's own old telephone regulations to IP-based voice.
But the biggest issue with the FCC's proposed rulemaking is its legal base. Section IV (B) explains why the FCC assumes it has the authority to regulate the Internet but the FCC does ask for comments on its assumption.
I expect they will get quite a few. I am not a lawyer, especially one schooled in matters of federal regulatory jurisdiction, but the view I've seen is far from unanimous that the FCC has the authority.
I do think we may need some way to ensure a neutral net beyond assuming that ISPs will always act in the best interest of the Internet users. I'm not sure how to get here since, if there is anything less likely to produce good results than the lobbying-heavy FCC process it is the lobbying-driven congressional process.
Disclaimer: Harvard educates both the lobbyists and the lobbied but has provided no opinion on this topic, so the above pondering is my own.