FCC’s NET NEUTRALITY RULES: A FIRST AMENDMENT OFFENSE
By Attorney Jonathan Emord
October 3, 2011
This November rules the FCC adopted December 21, 2010 governing “network neutrality” go into effect. Under these rules, FCC will lord over the net, exercising its subjective discretion to second guess the decisions of the private owners of internet wires on the propriety of their charges, the speed of content carriage, the nature and extent of interconnectivity, and the exclusion of content. FCC lacks statutory authority under the Communications Act for extending its jurisdiction over the internet, but in a classic power grab it has done just that. This is the agency’s regulatory toe in the door. If history is our guide, FCC will use that opening to insinuate itself into all manner of private structural and content based decisions made by internet wire owners.
The argument for net neutrality is presently fictive; it depends on faith that the future will bring about a closed net market without government intervention. Advocates of FCC regulation of the internet in this way argue that without FCC ordered net neutrality (meaning FCC regulation principally to prevent content and traffic speed discrimination on the web) the internet would devolve into an oligopoly in which a small number of internet service providers would erect discriminatory barriers to web access and web content distribution. There is one enormous problem with that argument. It is contradicted by the economics of the web. It is in the financial interest of those who own the wires to avoid limiting content and to achieve ever higher transmission speeds and market penetration, favoring to a great degree the widest access and interactivity possible. Consequently, it is the rare exception and not the rule in the present environment (free of FCC enforcement of net neutrality rules) that any wire owner engages in acts to dumb down the web, limit access, or constrict content tolerance.