The FCC didn’t forbear from broadband rate regulation

by Steve Blum • , ,

Not everybody gets through at the same time.

Republicans in the U.S. house of representatives want to write a ban on FCC broadband rate regulations into law. But that simple step would have far reaching implications for the net neutrality restrictions the FCC placed on ISPs. As the dissenting judge in the latest appellate court case wrote, it’s not just about how much an ISP can charge subscribers

The [FCC] (at least for the moment) allows ISPs to provide consumers differing levels of service at differing prices. As it says in its brief, “The Order does not regulate rates—for example, broadband providers can (and some do) reasonably charge consumers more for faster service or more data.” The statement is true (for now) vis-à-vis rates to consumers. But the ban on paid prioritization obviously regulates rates—the rates paid by edge providers; it insists that the incremental rate for assured or enhanced quality of service must be zero. Although I cannot claim that the parties’ exposition of the technology is clear to me, it seems evident that the factors affecting quality of delivery to a consumer include not only whatever service characteristics go into promised (and delivered) speed at the consumer end but also circumstances along the route.

Legal challenges to the FCC’s broadband common carrier decision will continue, likely for years. So far, the courts have allowed the rules to stand – there’s been no disagreement as to the FCC’s authority, only the diligence with which it’s being exercised.

It’s congress’ proper role to challenge the decision on political grounds. House republicans claim that they’re just baking into law the FCC’s existing, and narrow, promise to “forbear” from traditional regulation of subscribers’ monthly rates. But at least one judge’s opinion tracks with legal scholars who say that outlawing rate regulation will have a much wider impact on common carrier rules, and could negate them altogether.