Is Net Neutrality Really a Job for the Regulators?

Last week, the Federal Communications Commission released its Notice of Proposed Rulemaking on net neutrality rules that revolve around the idea of “reasonable network management.” Princeton’s Ed Felten points out that this framework would leave regulators with enormous discretion to determine what constitutes permissible manipulation of the Internet by network providers and what would be verboten. Giving the FCC so much leeway has some digital rights advocates nervous. Those advocates support the principles of neutrality, but they’re worried that the FCC’s jurisdiction grab here gives it an opening to exert greater control over the Internet down the road – which, given the Federal Communications Commission’s historic coziness with the industry it regulates, might not play out in the public’s favor. Those advocates might have a point. But adding a wrinkle to things is that Congress hasn't exactly proven itself capable of handling the complexities of the Internet age.

The problem is well described by the Electronic Frontier Foundation's Corynne McSherry. In the absence of any real express authority to regulate net neutrality, the FCC is relying on what's known as "ancillary jurisdiction." The theory of governing here seems to be that authority magically presents itself to regulators on matters where Congress hasn't yet seen fit itself to act. The Federal Communications Commission invoked that supposed jurisdiction last summer when it condemned Comcast for blocking the peer-to-peer network Bittorrent on its networks. It's all in the name of articulating a "Federal Internet Policy," said the FCC. At the time, New York Law School professor Susan Crawford, who is now doing a stint on the White House's National Economic Council, called the idea that it's the FCC's job to cobble together a vision for the Internet's future on a case-by-case basis simply "nuts."

And nuts the idea may well be. But Congress seems increasingly comfortable ceding the particulars of this great debate to the FCC. That's a shame on a policy level. With the exception of some prominent folks in both the House and Senate, legislators seem content to punt any sort of informed debate on the future of the Internet to regulators. Colorado Democrat Jared Polis, for example, recently had to double back on his signature on a letter sent to the FCC by 70 members of Congress touting the telecom industry line against neutrality regulation. He thought it was a pro-neutrality letter, he says. Whoops.

--Nancy Scola

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