The Washington PostDemocracy Dies in Darkness

How net neutrality regulations could undermine the open Internet

In recent years supporters of network neutrality have tried and failed to get Congress to enact neutrality regulations. In 2010, Julius Genachowski, President Obama's choice to lead the Federal Communications Commission, decided to act anyway, relying on a controversial interpretation of existing statutes to justify a new regime of "open Internet" rules.

At the time, most network neutrality supporters described Genachowski's as a step in the right direction. But some warned that the FCC's legal arguments, if accepted by the courts, could be bad for network neutrality in the long run. They could open the door to future FCC regulations—for example, to combat online gambling, pornography, or piracy—that could actually undermine Internet freedom.

Two wireless carriers, Verizon Wireless and MetroPCS, have challenged Genachowski's regulations. On Friday, in the wake of its recently-completed merger with T-Mobile, MetroPCS withdrew its challenge to those rules. Gigi Sohn, the president of the pro-net-neutrality group Public Knowledge, hailed MetroPCS's decision and encouraged Verizon to follow suit.

But another prominent supporter of the open Internet, the Electronic Frontier Foundation, is skeptical of the FCC's argument that existing law gives it "ancillary jurisdiction" to establish network neutrality rules. "We like the goal, but we're concerned about the means for getting there," says EFF's Mitch Stolz. EFF laid out its concerns in a blog post in 2009:

If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC "Internet Decency Statement." After all, outgoing FCC Chairman Martin was a crusader against "indecency" on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet.

Stoltz draws a parallel to a decade-old battle over the "broadcast flag," a rule that would have forced television manufacturers to build anti-piracy capabilities into their products. Opponents of the rule, including EFF, convinced the courts that the FCC's authority was limited to the use of spectrum—it didn't extend to regulating the design of TV sets.

Public Knowledge also opposed the broadcast flag. And Sohn shares EFF's concerns about overreach by the FCC. But she says that the FCC's current approach was better than nothing. Republicans in the House are unlikely to allow new Internet regulations, she says, and "we fear a situation in which the FCC has no authority."