Net neutrality regulations perfectly fit the FCC's statutory intent

[Commentary] Is it conceivable that Congress created the Federal Communications Commission so that it could identify a risk and then decide that it should take no action to constrain it? The Restoring Internet Freedom order suggests that the FCC doesn’t approve of blocking, but insists that the FCC will do nothing about it if it takes place. The Federal Trade Commission is a great antitrust and consumer-protection agency and its work is vitally important. But it was not designed to be an expert in the way that communications networks operate. For example, suppose a consumer says that a website has been blocked, but the broadband provider says there were just technical problems. Under the draft order, the technologists and engineers and experienced lawyers and the policy advisors who deal with the broad jurisdiction of the FCC, much less the commissioners themselves, would no longer be decision makers. The FTC, which has been prohibited from working on common-carrier issues in telecommunications, would have to solve the puzzle. Why bench the experts? The simple fact is that Congress created the FCC as an expert agency, but now the FCC seems poised to say that it won’t exercise its expertise. It is unlikely the FCC will be able to convince a court of appeals that it is free to stop doing its job where there is, as the draft order admits and as the facts clearly demonstrate, an acknowledged risk of harm to consumers and competition.

[Jonathan Sallet is a senior fellow at the nonprofit Benton Foundation. He served previously as general counsel at the FCC, where he helped to write the 2015 net neutrality rules and subsequently defended the rules in court.]