Sunday, December 12, 2010

FCC Net Neutrality Effort All for Show?

Nobody has seen the secret draft of the upcoming Federal Communications Commission proposed rules on net neutrality. No doubt it will be crafted in as balanced a way as such a rule can be.

But it is not immediately clear how the jurisdictional argument can be overcome, namely that the courts already have ruled that the Commission does not have the authority to create a rule, even if it wants to.

No doubt some clever extension of common carrier and ancillary authority will be offered up. But it isn't clear how long the rules will be in force before the inevitable round of court challenges begin.

Having already once rejected the premise that the FCC can assert jurisdiction over networks that manage traffic by prioritizing some types of traffic over others.

No doubt a different basis for jurisdiction will be asserted, and then we'll have to see whether courts will agree. In the end, as sometimes happens in Washington, D.C., some things loudly get done, for political reasons, that even proponents realize will not stand, in the end.

There will be lots of noise, no doubt. Whether there will be rules that can withstand court challenge is among the key issues. Some doubt the rules will succeed in that respect.

1 comment:

Anonymous said...

Not correct on details. The court did NOT say that the FCC can't create a rule. It said that it can create a rule if and only if it does so within the bounds of the law. In particular, the FCC's Comcast Order, which didn't even follow rulemaking procedures (and probably could have been voided on that alone), claimed to be ancillary to Title I. The court said that you can't be ancillary to Title I.

The FCC has a lot of power under Title II but does not appear interested in using it. Rumor has it that they're looking at Title I and also now Section 706, which is not even part of the Communications Act (47USC) at all, and which confers no independent authority. In other words, they're still intending to create a rule that will not stand up in court. This is still just political posturing.

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