But how do we get there from here? Even if you think (as I do) that it is the preferred outcome, how do you make it happen? This, of course, is what the FCC has been struggling with for over a decade – unsuccessfully, to date. The FCC’s “Open Internet” rules were struck down this past January by the DC Circuit Court of Appeals (in a very well-written and thoughtful opinion by Judge Tatel) on the grounds that the Commission’s non-discrimination rules amounted to regulation of broadband Internet providers as “common carriers” – and the Communications Act gives the Commission no statutory authority for treating them in this manner. In effect, the court said, the Commission put the cart before the horse; it can reclassify broadband providers as common carriers and impose the non-discrimination rules on them, or it can ask Congress to do that reclassification for them, but it can’t just impose common-carrier-like regulation on them without having done the reclassification first.
It’s all horribly technical, but there’s a simple, and difficult, question at its core: are we prepared to say that broadband Internet access is in effect a public utility, and that those providing it must refrain (like the old telcos had to refrain, or the electric company has to refrain) from giving preferential treatment to certain content providers? The world’s a better place, I would suggest, if they did so refrain – but our experience with public utility regulation has not always, to put it mildly, been in the consumers’ best interests or the best way to stimulate the development of innovative services. This one, however, could be different — is it?
UPDATE: Larry Downes, always a perceptive commentator on Internet regulatory issues, has a couple of very helpful analyses of the net neutrality fight here and here.