Correction to This Article
An earlier version of this editorial incorrectly described the classification the Federal Communications Commission was considering for broadband service providers. The classification was common carriers, not content carriers.

How the FCC can best regulate the Internet

(Jason Alden/bloomberg)
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Thursday, August 26, 2010

FOR MORE THAN a decade, "net neutrality" -- a commitment not to discriminate in the transmission of Internet content -- has been a rule tacitly understood by Internet users and providers alike.

But in April, a court ruled that the Federal Communications Commission has no regulatory authority over Internet service providers. For many, this put the status quo in jeopardy. Without the threat of enforcement, might service providers start shaping the flow of traffic in ways that threaten the online meritocracy, in which new and established Web sites are equally accessible and sites rise or fall on the basis of their ability to attract viewers?

Such concern inspired a recent proposal from Google and Verizon that offers a commitment to net neutrality accompanied by limited enforcement authority for the FCC in cases where violations are suspected. The proposal is a compromise between the desire of content providers to ensure that all content streams are treated equally and that of access providers to maintain flexibility to manage their networks. (Different parts of The Washington Post Co. provide both content and Internet access.) Many Internet users have objected to the proposal, complaining that its formulation of net neutrality leaves too many loopholes.

Much of this difficulty is inherent in codifying something that long has been taken for granted. And the proposal includes many good elements -- especially its designation of the FCC as an adjudicatory body such as the Federal Trade Commission rather than one with intrusive regulatory authority. In a realm as complex and evolving as the Internet, where the challenges vary from year to year and it is impossible to predict the direction of innovation, this is essential. Allowing the FCC to enforce on a case-by-case basis can leverage expertise and create a body of useful precedent, rather than stifling innovation with unwieldy preemptive regulations.

Any action in this area will require compromise. The stakes on all sides are high. For providers, investing in additional capacity is costly, and the flexibility to shape traffic is a prized commodity; for Internet users, having equal ease of access to all content has been perceived as a basic right. The Obama administration has long been committed to the cause of net neutrality, but any government espousal of this principle needs to be carefully tailored.

The FCC stands poised to reclassify broadband service providers as common carriers, a category that would subject them to the same sort of regulation that telephone companies are saddled with, even giving the FCC the ability to set rates. The agency's chairman says that the FCC won't use this power -- but this could change in another administration. Such a move would be a serious step backward.

A better route would be legislative enactment of something like the Google-Verizon plan, with an emphasis on transparency about decisions that providers are making. Giving the FCC the authority to nudge things in the right direction will be a good first step. As the Internet evolves, the nature of needed oversight will evolve as well. Establishing a clearly limited power to take action against anti-competitive violations, rather than encumbering this vital sector with detailed and prescriptive regulation, is the sensible approach.


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