The FCC and Net Neutrality: Classic Washington 'Cut the Baby In Half' Approach

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...in what appears to be a classic Washington "cut the baby in half" approach, the newest version of net neutrality would include exactly what its proponents abhor -- price differentiation among users.

The FCC, and especially its Chairman Tom Wheeler, made a splash earlier this week in announcing that new "net neutrality" rules would be adopted at the Commission's open meeting scheduled for May 15. That would be the FCC's third (or so) shot at crafting a scenario under which the FCC would directly regulate Internet operations in order to ensure that the large providers do not "discriminate" unfairly in their provision of bandwidth. Earlier attempts at this scheme were reversed on appeal.

Many Democrats, including in the past President Obama, chanted the concept of net neutrality as a mantra intended to promote "fairness" for Internet users by blocking service providers from charging higher rates for greater use of the Internet and its bandwidth, or at least, providing legal recourse against them. For the Republican side of the imbroglio, the whole concept is a solution looking for a problem (and in reality there is little concrete evidence of abuse along such lines) which would intrude upon one of the most economically successful aspects of the US economy. (If it ain't broke, don't fix it.)

Everyone awaits a definite statement from the White House to see if the President will stand by his 2007 campaign position, which was in lockstep with liberal support for net neutrality, or if he will about-face on another one of his positions.

In sketching out a third bite at this apple, the FCC indicated that the new regime would provide for "fast lanes" of Internet distribution at higher prices. Thus, in what appears to be a classic Washington "cut the baby in half" approach, the newest version of net neutrality would include exactly what its proponents abhor -- price differentiation among users. Leading Democrats, public interest groups and large users (think Netflix) already have denounced this take on the rules. The right wing still labels the whole concept as unnecessary and an unjustified Fed intrusion. Everyone awaits a definite statement from the White House to see if the President will stand by his 2007 campaign position, which was in lockstep with liberal support for net neutrality, or if he will about-face on another one of his positions.

We should learn much more once we get past press statements and actually see an FCC order. What could be prettier than Washington in the Springtime?

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[Charles Naftalin is a partner in Holland & Knight's Washington, D.C., office and practices in the area of telecommunications law.]

 

Topics:  FCC, First Glance, Internet, Legal Perspectives, Net Neutrality, Obama Administration

Published In: Business Organization Updates, Communications & Media Updates, Science, Computers & Technology Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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