The Wall Street Journal and New York Times have reported that controversial FCC Chairman Tom Wheeler is floating a “trial balloon” for its net neutrality rule. If the reports are accurate, the proposal would ignore 3.7 million comments that almost unanimously urge the FCC to ban fast and slow lanes and to adopt straightforward, solid legal authority—after losing twice in court for lack of authority. In addition to ignoring the public, it would also ignore dozens of senators and members of Congress in Wheeler’s own party, not to mention the president who appointed him.
The rule—which will likely be adopted Dec. 11, with an internal draft circulated by Nov. 20—would permit fast and slow lanes on the Internet, in part because it rests on a new and exotic theory of legal authority that will almost certainly fail in court, for the third time —even though judges and members of Congress keep pointing to an obvious, strong authority at the heart of communications law.
While the actual proposal is not available to the public, the reports appear in line with what the FCC is telling stakeholders. Based on those reports, there are two major problems here—the rules and the authority they rest on. Both are important. In 2010 we were told to focus on the rules and ignore the authority, and that’s exactly why the FCC lost in court.
Problem 1: Fast Lanes and Slow Lanes
Data can generally travel the speed of light unless networks are congested. When there's congestion, usually the cheapest and best thing is simply to add capacity generally, not to prioritize certain sites over others. A rule against paid fast lanes would encourage additional capacity; a rule permitting paid fast lanes would simply encourage cable companies to create congested slow lanes on the Internet so they could make money by selling fast lanes to big companies. The FCC reached the same conclusion in a previous decision under a previous Democratic chairman. (If you’re ambitious, see Page 59,207.)
The current FCC—led by a controversial and embattled chairman who was once a top cable lobbyist—instead wants to permit fast lanes in some circumstances, and at most will adopt a “rebuttable presumption” against paid prioritization, likely with a vague “case-by-case approach.”
Read the full piece at Slate.