Last week, the Federal Communications Commission released a 400-page document laying out the official orders for how it plans to regulate net neutrality under Title II common-carrier provisions. Not surprisingly, reactions to the document's specifics immediately separated out along ideological lines, with supporters of the doctrine praising the rules while opponents attacked them for leading to "years of litigation, serious collateral consequences for consumers, and ongoing market uncertainty."
Stay flexible, my friends
One of the biggest concerns, though, centered on the fact that, despite the length of the report, many of the issues are not fully settled and remain to be resolved by the FCC on a "case-by-case" basis, according to the Wall Street Journal, which quoted the report saying:
"We find that the best approach is to watch, learn, and act as required, but not intervene now, especially not with prescriptive rules."
See also: Why small ISPs support net neutrality
Maybe I'm naïve, but that seems like the only reasonable approach to a high-pressure environment that will likely undergo dramatic technological, legal, and political shifts in the coming years. The FCC is already girding for legal challenges to its ruling and the language of the order itself even as the relevant technologies and competitive landscape continue to evolve. Oh, and there's an election looming in 2016 that could further shift the political balance of power on these issues in hard-to-foresee ways.
While the FCC intends to apply its overall principles of net neutrality with data services regulated as a common carrier to whatever situations may arise, it's very difficult today to see how that should translate to actual decisions in all cases. Whether you think that's a good thing or a bad thing depends on how much you trust the FCC and the other players to make the right moves in this ongoing soap opera.
Gaming the system?
From my perspective, while no approach is without risk, the sheer amount of money at stake for many players demands a flexible approach. As the history of Wall Street regulation has shown, for example, no matter how carefully and exhaustively regulations may be written, if there's enough incentive, someone will quickly figure out how to game the system for their advantage.
By giving itself some "wiggle room," the FCC hopes to put itself in a better position to respond to attempts to outwit the rules, as well as to cope with new technologies and competitive realities.
There are no guarantees, of course. That same flexibility could also open doors for big-money lobbyists and political pressures designed to create favorable interpretations for some companies and not others. Investors, meanwhile, typically like to see as much certainty as possible, even if the specifics are not particularly to their liking. (Of course, they'll then attack those undesirable specifics as directly as they can.)
But you can't have it both ways. You can't decry the stupidity of rigid rules and then also complain about leaving room to make informed, up-to-date decisions about new and ever-changing issues.
It seems to me that in promising to look at each case on its individual merits, the FCC is taking a sensible approach to a complex issue. Now we just have to see how it plays out in the real world.