The FCC Floats a Net Neutrality Trial Balloon

[Commentary] Federal Communications Commission Chairman Tom Wheeler is floating a “trial balloon” for his net neutrality rule. If 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.

[Ammori is a Future Tense fellow at New America]