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

[Commentary] So after a year of process, what has the Federal Communications Commission (FCC) accomplished on network neutrality?

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 carries 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.