The case against the FCC's Network Neutrality plan

[Commentary] The basic thrust of the Federal Communications Commission's proposed Network Neutrality rules is to keep broadband Internet access providers from managing last-mile network traffic in ways that discriminate, pro or con, based on content, applications, or devices. Access providers would be banned from restricting or throttling services that the provider doesn't like, for example, perhaps because they compete with more expensive alternatives the provider or one of its business partner offers. The proposed rules would apply to all broadband access, including wireless. The document itself asks more than 100 questions, including whether the new rules are necessary, whether the commission should enforce them without detailed regulations but instead on a "case by case" basis, and even whether the commission has the legal authority to enact new rules in the first place.

Downes has three major concerns: 1) the FCC's reliance on "ancillary jurisdiction" to justify its legal authority to adopt and enforce network neutrality rules, 2) Even if the FCC has the power to issue new rules, there are enough exceptions to render them toothless, and 3) The risk of non-neutral behavior is significant, but the cost of regulation and the potential for unintended consequences may be higher.