Vague rules will make the FCC a poor referee

22 February 2015 by Steve Blum
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It’s always a bad call when a ref begs to be noticed.

FCC chairman Tom Wheeler says he wants to be the Internet’s referee. He’s used that description of how he see’s the FCC role in managing the broadband ecosystem several times, most recently in a Colorado speech where he talked about his proposal to bring the Internet under common carrier regulations…

The proposal also looks forward into the broadband future to assure there are basic ground rules and a referee on the field to enforce them. In general, if an action hurts consumers, competition, or innovation, the FCC will have the authority to throw the flag.

Wheeler’s original plan, which he floated last May, contained only a vague statement that Internet service providers shouldn’t do anything that’s “commercially unreasonable”, a term that the FCC would interpret and define as complaints came in. But that plan didn’t fly. So the next step was to craft presumably tighter rules, based on the FCC’s authority to regulate telecoms companies as common carriers.

We haven’t seen those rules yet, and likely won’t until after the FCC votes next Thursday. When we do though, an important – arguably the most important – question will be how well those rules are written. Vague or precise? Limited or wide ranging? Based on objective standards or subjective judgements?

Among my other sins, I’ve been a sports referee – triathlon – for 18 years. I’ve worked, and competed, under a wide variety of competitive rules and enforcement policies. There are two basic models: precisely written, objective rules enforced by low profile refs that rely on observation, and vague, discretionary rules freely interpreted by officials who insert themselves – and their egos – into the competition.

Wheeler clearly belongs in the latter category. But good rules and transparent enforcement policy go a long way toward limiting the damage a bad referee can do. The details of next week’s decision are important, but the underlying ethic and craftsmanship will matter more in years to come.