The FCC will be releasing its net neutrality order tomorrow, though it’s not fully baked at this point and might still be pulled from the agenda. The order appears to be a curious mixture of a logical application of net neutrality and an illogical legal foundation. I’ve reviewed the Court of Appeals ruling in the Comcast case, and it’s hard for me to see how this dodges the legal issues the court has already raised. The only avenue forward would be for the FCC to now assert (and justify) the view that Section 706 of the Telecom Act gave the FCC “new” powers to encourage broadband, and not just a specific justification to exercise the powers it already had. To this point, though, the FCC has consistently taken the opposite position.
Republicans in Congress are rattling their sabers, threatening to pass a bill that offers no funding for the FCC’s neutrality rules. Apart from whether this is even legal, it’s pretty obvious that it could never pass in the divisive political world of Washington. Similarly, it’s clear that net neutrality legislation more aggressive than the FCC proposes — mandating no traffic management, no premium handling except for free, and full wireless regulation — wouldn’t pass, either. So whether either extreme is the right answer doesn’t matter.
What does matter is having a set of rules that will pass legal muster, and that’s where I’m concerned. The FCC’s “third way” was the right answer. It was clearly legal and it would have offered exactly what the situation needed. Some of the Democratic commissioners want it, and frankly, I’d rather they held out. I disagree that this order is better than no order — if it’s not enforceable, then it truly is “no order.”