For all the reaction it elicited, Chairman Genachowski’s plan for codification of the so-called net neutrality rules, as suggested in a speech he gave Dec. 1, amounts to too little revealed, much less resolved, to allow for fully confident assessment.
This said, it’s not too early to observe that any public policy that is roundly condemned by Free Press, the Media Access Project, and the Nation magazine can’t be all bad. And condemn it they have. Under headlines like “Is FCC Peddling Fake Net Neutrality?” and “FCC Chair Genachowski’s ‘Fake Net Neutrality’ Scheme Threatens Internet Freedom, Digital Democracy,” the left’s unhappiness is as loud as it is music to the ears.
On the other hand, the chairman’s proposal has also attracted heavy fire from members of Congress, many but not all of them Republicans, and from the two Republican commissioners at the FCC. In Congress, the general animus centers on the feeling that the FCC should at least consult with, if not defer to, the members about such things, while Republicans are especially angry that the chairman’s plan anticipates action before the newly elected members of the House and Senate are even seated.
Meanwhile, the service providers are somewhat divided, with some of them content to wrap things up in a way that falls far short of what they had feared, while others are troubled by the apparent lack of a sunset provision, and by the unsettled nature of many important details.
So philosophy on parade it is not. It is, instead, equal parts partisan politics, an acknowledgment of the way the world works, and 100-proof deal making. As such, it’s unsatisfying – like taking a shower with your socks on – but it’s not a complete surprise. As reported here, it’s always been clear that Genachowski had the inclination, and the votes, to proceed with some kind of “net neutrality” scheme, even as it also has looked ever more problematical for him to go the whole nine yards, as in Title II “reclassification.”
More than this, there are aspects of the apparent plan – like its embrace of consumption-based billing – that are deeply satisfying. It wasn’t all that long ago that Time Warner Cable had to abandon plans, in consequence of noisy opposition from the usual troglodytes, to do some trials of this kind of thing. Charging more of those who use more is the way we price most things, of course, but that didn’t prevent groups like Free Press and Public Knowledge from piling on in opposition to TWC’s plans, nor from gloating when the company withdrew its proposed trials.
For now, the whole of this matter can be reduced to some questions, not all of them answerable. Is Title I regulation better than Title II? Yes. Is this the best result one could reasonably expect from this FCC? Probably. Is it wise public policy? No. Will the FCC’s action, whatever it is, be the end of the matter? Depends. If, sometime in the future, a party with standing decides to sue the agency on the claim that it lacks authority to regulate the Internet in this way, it will have a viable argument with some case law to back it up. And if that lawsuit were to be resolved in a way that (once again) ordered the FCC out of the Internet regulation business, well, so much the better.
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.