Chairman Wheeler and the terrible, horrible, no good, very bad Open Internet Order

[Commentary] We’ve had a few days now to digest the Federal Communication Commission’s Open Internet Order. While this exercise will be ongoing for the foreseeable future, one thing has become abundantly clear: the Order is worse than expected. This is particularly true when it comes to the issue of paid prioritization. The FCC’s analysis is threadbare and conclusory throughout. It cites comments selectively and without serious effort to analyze substantive concerns. It ignores and mischaracterizes evidence in the record. It bases its conclusions on irrelevant and at times self-contradictory factors. The FCC plays so fast and loose with the record and draws so many clearly erroneous conclusions of fact and law that the only questions left are these: how badly is the FCC going to lose, and what will the long-term impact be for the commission’s reputation? Not only does the commission’s justification for the ban on paid prioritization make no serious attempt at analysis and rely primarily on cherry-picked sentences from comments, but it also ignores the existing body of actual research on paid prioritization.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]