FCC Net Neutrality Ruling Makes For Strange Bedfellows

Some of net neutrality's biggest champions this week found themselves in the unusual position of agreeing with opponents that a U.S. appeals court did the right thing in ruling against the Federal Communications Commission for sanctioning Comcast after the company "throttled" peer-to-peer Internet traffic for some of its subscribers.

How is it that some advocates on either side of the net neutrality debate found common ground in applauding Tuesday's unanimous decision in favor of Comcast by three judges sitting on the D.C. federal Court of Appeals panel?

For opponents of net neutrality -- the proposed policy that Internet service providers (ISPs) must be "neutral" to data being shipped over their pipes to subscribers and not intentionally slow or throttle the transfer of certain types of files or sharing between certain parties -- the reasoning seems pretty straightforward.

Simply put, the federal government should not be in the business of regulating how ISPs manage their networks, they said.

"The idea that this ruling will invite bad behavior is nonsense," former Bush administration technology policymaker Bruce Mehlman told the San Jose Mercury News. "Companies need to manage their networks to handle high volumes of traffic and bona fide threats out there, but we're simply not going to see blocking or degrading of disfavored sites. It would be bad business and it would beg for regulatory overkill."

But what of net neutrality advocates' main concern, that there is a major problem when ISPs are free to slow or speed up Internet traffic for the purpose of charging more for or even banning the transfer of certain types of content to subscribers from certain individuals or suppliers?

"[T]he market will do what it usually does: solve problems on its own," claimed business professor Joel West in a Seeking Alpha column. Similar "sturm und drang" about the blocking of VoIP services by mobile carriers proved unfounded when "overwhelming consumer demand" pressured the carriers to keep supplying their subscribers with services like Skype, he argued. Net neutrality advocates who nevertheless supported the ruling against the FCC appeared to have a more nuanced interpretation of the situation. Essentially, they would like to see Congress pass an actual law defining net neutrality and establishing its regulation, rather than have the loosely enforced policy that's been shoe-horned into the FCC portfolio without any legislative backing.

In that sense, Tuesday's ruling was the right one for several reasons, argued Fred Von Lohmann of the Electronic Frontier Foundation (EFF), a long-time advocate of net neutrality.

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"Here's the problem: Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality," Von Lohmann wrote. "In place of explicit congressional authority, the FCC decided to rely on its 'ancillary jurisdiction,' a catchall source of authority that amounts to 'we can regulate without waiting for Congress so long as the regulations are related to something else that Congress told us to do.'

Von Lohmann was careful to reassert the EFF's bona fides as "big supporters of net neutrality" -- but noted that such support was trumped by the institution's fear of a slippery slope.

The FCC's assertion of 'ancillary jurisdiction' over ISPs despite no direct mandate to regulate them "could translate into carte blanche authority for unelected bureaucrats to regulate the Internet long after [FCC] Chairman [Julius] Genachowski has moved on," he said.

So what's next? Breathless media headlines would have us believe that "net neutrality is dead." But that opinion of one court decision isn't even held by some opponents of the proposed policy.

The Court of Appeals ruling did not necessarily shut the door on a federal net neutrality policy but in much narrower terms simply stated that the FCC overstepped its bounds in trying to enforce such a policy without specific authority to do so.

For advocates, the path forward is clear. They say it's high time for President Obama and Congressional Democrats to put some actual skin in the game and pass net neutrality legislation, rather than trying to slough off enforcement responsibilities via agencies like the FCC.

And some of net neutrality's fiercest opponents, in the popular political parlance, appeared to "welcome that fight."

"[T]he FCC should stop trying to weasel out of the law and instead go through the Constitutional process to change the law," wrote West.