The FCC Network Neutrality Order: Possible Adequacy, But No Regulatory Certainty Any Time Soon.

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So after a year of process, what has the Federal Communications Commission (FCC) accomplished on network neutrality? I will not say “nothing,” and I understand why FCC Democratic Commissioners Michael Copps and Mignon Clyburn regard it as better than nothing. But specifics prove damned elusive. And therein lies the problem for this Order (at least as we understand it).


On every single important and controversial question on what an “open Internet” actually means, -- such as whether companies can create “fast lanes” for “prioritized” content or what exactly wireless providers can and cannot do -- the actual language of the rules is silent, ambiguous, or even at odds with the text of the implementing Order. The only way to find out what protections consumers actually have will be through a series of adjudications at the FCC.

So yes, it’s a step forward – but hardly more than an incremental step beyond the Internet Policy Statement adopted by the previous Republican FCC. After such an enormous build up and tumultuous process, it is unsurprising that supporters of an open Internet are bitterly disappointed -- particularly given the uncertainty over how the rules will be enforced. Certainly the transparency provisions and adoption of the "rocket docket" procedures to process complaint are positive things. But FCC Chairman Julius Genachowski's claim that the Order will bring certainty deserves a healthy dose of skepticism. Instead of using this long and painful process to define what carriers can and can’t do, and what rights consumers can expect, the FCC has created the opportunity to undergo a long and painful process of enforcement to define the rules. It could be that with strong enforcement these rules will protect the open Internet. Or not, depending on the outcome of some future adjudication and the whim of a future FCC.  Such vast unknowns hardly amount to “regulatory certainty,” beyond the certainty that there is a process and that it will require a great deal of time and expense to litigate.


What makes this particularly painful is that there is no sensible reason why Genachowski has decided to toddle timorously where he could stride boldly. Let us be clear here. We are not talking about “the perfect being the enemy of the good” or any of the other countless clichés invoked to explain the general inability of Washington to come up with real solutions to structural problems. There are no Republicans stepping forward to support this compromise. To the contrary, the Republican Commissioners remain implacable in their opposition to adopting any rules, and have discounted the carrier support for this Order as “coerced.” Congressional Republicans have vowed to repeal the Order by denying the FCC the funds to enforce any network neutrality rules. There is no filibuster to overcome, no bipartisan consensus to reach, not even any “Blue Dog” Democratic resistance. The other two Democratic Commissioners are not only willing but eager to vote for rules that expand and define the protections for consumers more clearly.


Nor is it that Genachowski himself has any doubt about what an open Internet requires. Genachowski has spoken eloquently about the dangers of creating Internet fast lanes and toll roads. He continues to preach the value of wireless and how there must be “one Internet.” So why, with a majority firmly in hand and no obvious gains from holding back, does Genachowski refrain from taking the last step and defining these things clearly in the rules themselves? Genachowski justifies his decision through what has become the almost de rigueur exercise of invoking competing “extreme” straw-men and placing himself in the mythical center, as if rhetorical geography constituted leadership.  Unfortunately, it would seem that Genachowski has not demonstrated Solomonic wisdom, but rather pursued a policy of political expediency by pushing all the truly hard decisions off to some future judgment day.


Unfortunately, as is so often the case, the path of expediency comes with a cost. The regulatory certainty that we and everyone else had hoped for -- and that Genachowski claims this Order provides -- will not emerge. Instead of an FCC that fights for consumers, Genachowski has decided it is enough to define the battleground and invite consumers to fight for themselves.


It is understandable why Commissioners Copps and Clyburn would choose an Order that gives consumers a chance to fight for their rights over no Order at all. Such an Order is better than nothing -- primarily through their tireless efforts to improve it. What is unfortunate is that Genachowski would choose to present them with such a choice. It is a sadly missed opportunity to show leadership in favor of the more fashionable shibboleths of “building consensus” and “steering a middle course.” Yes, it is a “step forward.” Hopefully, however, we will someday stop taking "steps forward" to define the rules for an open Internet and actually provide consumers the concrete, well defined protections consumers deserve.

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