Uncommon Wisdom

Feb 21 2011   4:11PM GMT

Will Congress derail the FCC’s net neutrality before the courts do?

Tom Nolle Tom Nolle Profile: Tom Nolle

Well, we’ve got the usual regulatory flap, with the same players and the same issues. Republicans in Congress are looking for a way to derail the FCC’s net neutrality order, and the strategies range from a disapproval vote (which only buys some time) to pulling funding for the measure (a cop-out that has no chance of passing and getting by a veto). It’s hard to say how much of this is politics, how much is lobbying, and how much is posturing to get on the “right” side of an issue the courts are likely to throw out eventually.

The FCC, meanwhile, has said explicitly that its neutrality order doesn’t cover the dispute between Comcast and Level 3, and this statement could be good or bad depending on your slant on the neutrality order’s legality. Presuming that the FCC could craft something that passed legal muster, it would make sense for it to cover the critical issues in the industry rather than let them blunder on some random path. The question of Internet settlement is one of the most critical of all, and so I would have liked the FCC to take some strong steps there. You can’t take a strong step from an order without legal foundation, however, and given the questions on the neutrality order, it may be best that the FCC doesn’t intend to intervene in key issues based on its authority.

Many of you who have read my stuff through the years know that I’ve been a strong supporter of explicit Internet settlement, to the point of being a co-author of an RFC on the topic in the mid-90s. I believe that any business ecosystem that can’t settle payments according to proportional involvement of parties will eventually fail. In particular, premium handing and services are hard to imagine in a bill-and-keep space, unless everything is “on-us”. Thus, the lack of settlement is one of the biggest issues to address if you really want an “open” Internet.  The FCC is saying that the market can decide, but of course that will work only if Congress doesn’t get in the way. And in any case the market hasn’t decided up to now.

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