FCC chair offers guaranteed income to lobbyists and lawyers

by Steve Blum • , , ,

The 99 page dissertation on Internet regulation released by the FCC yesterday only contains 2 pages of actual draft rules, which rely almost entirely on what the FCC considers reasonable on any given day. For example…

A person engaged in the provision of fixed broadband Internet access service…shall not engage in commercially unreasonable practices. Reasonable network management shall not constitute a commercially unreasonable practice.

Actually, that’s not an example. That’s the sum total of chairman Tom Wheeler’s proposed net neutrality rule. There are requirements for transparency and a ban on outright blocking, but otherwise mobile carriers can do whatever they want and the only check on wireline (and fixed wireless) providers is the possibility that someone else has better lawyers or lobbyists with heavier bags of campaign cash than they do…

We will adopt a case-by-case approach, considering the totality of the circumstances, when analyzing whether conduct satisfies the proposed commercially reasonable legal standard, or another legal standard ultimately adopted. We believe that…this approach will provide the advantage of certainty and guidance to broadband providers and edge providers—particularly smaller entities that might lack experience dealing with broadband providers—while also allowing parties flexibility in their individualized dealings.

It would be hard to find a better example of stunningly Orwellian logic. Case by case determinations using a thoroughly vague standard is the polar opposite of “certainty and guidance”. And far from protecting “smaller entities”, subjecting every dispute to Washington-style litigation guarantees that the biggest companies with the deepest pockets will prevail.