Editorial: Net Point

The FCC is preparing to go to court Sept. 9 to argue for its broad authority to regulate Internet access.

It will likely have a tough time. It’s the same court that threw out the FCC’s BitTorrent decision against Comcast in 2010, saying the commission had not tied its perceived authority to statute.

The FCC has now tied its authority to rules it came up with itself—the Open Internet Order—but the lipstick on a pig analogy comes to mind.

You won’t hear cable operators clamoring for the Open Internet Order’s demise. In fact, it is a single phone company— Verizon—challenging the order. That is not because cable operators love the order or think it is necessary. Primarily it is because the proposed alternative the FCC brandished like a cudgel in order to get cable ops’ acquiescence was to classify Internet access service as a telecommunications service subject to mandatory access conditions.

That threat, plus some sweeteners to the order—like not applying it to specialized services or usage-based pricing— got cable operators on board, but more grudgingly than the FCC’s glowing press releases at the time suggested. Those were somwhat abridged for effect, but that is another editorial.

Fast-forward to this week. The court— after hearing the case made by Helgi Walker, the winner and still champ of the BitTorrent decision (and now working for Verizon—will likely hold that the FCC can’t find novel new authorities where Congress did not put them.

The result will be, beyond reining in regulatory overreach: Not much. Cable operators will continue to deliver online content of every stripe as fast as they can because that is what their paying customers demand. The FCC and the Justice Department will continue to be in place in cases where there are proven instances of anticompetitive behavior.

There have been no formal network neutrality complaints since the Open Internet order was adopted in December 2010. Public interest types who were doing that non-filing say it is because the rules are working and discouraging discrimination and blocking.

Or, it could be because there was no big problem that required the FCC to insert itself into the regulation of Internet access service via the Open Internet Order.