On the Waterfront With The FCC

[Commentary] For all the sturm und drang surrounding the Federal Communications Commission’s actions on network neutrality – they could end up being toothless. For all of the overheated rhetoric about a “government takeover” of the Internet, and for all of the news stories about regulating Internet traffic, the situation at the end of the day is much less clear. There is much less than meets the eye. That’s because of the dichotomy of what is a rule, and what is a discussion of a rule.

For example, if the FCC had said, it is a violation of our rules to offer a “pay for priority” service or to offer “specialized” services outside of the Internet that might siphon off bandwidth from the Internet everyone uses. At that point, carriers would know what is allowed and what is not. They could challenge it, of course, but the rule would be clear. That’s not what the FCC did. Instead, the text of the FCC order as part of the discussion of Net Neutrality simply says, in essence, “We don't think pay for priority is a good idea,” and might be considered “unreasonable discrimination.” Is that informal opinion that’s not a part of the central rule enforceable? If you think that’s a court case waiting to happen, you’re right. If it was that important, why didn't the FCC simply ban the practice? Because of loopholes like this, the future of any number of companies that exist now is in jeopardy because the rules will allow giant telephone and cable companies to create their own version of the same service as one that already exists, to offer it on different terms and conditions that would put a competitor at a disadvantage – say a better video streaming experience that the in-house service can get but which others don't have.