Net Neutrality Drifts Ever Closer to Oblivion

| Tue Jan. 28, 2014 3:29 PM EST

In the wake of a circuit court ruling that the FCC doesn't have the authority to mandate net neutrality, Brian Fung reports on the likely next step from federal regulators:

[FCC chairman Tom Wheeler] appears to be leaning increasingly toward using the FCC's existing legal authority to regulate broadband providers. Industry watchers say this approach would likely turn on a part of the Communications Act known as Section 706, which gives the FCC authority to promote broadband deployment.

....Over the past week, some insiders, including industry representatives and public advocates, have said that Section 706 actually gives the FCC much more power than we thought....While the agency can't lay down a blanket rule prohibiting ISPs from abusing their power, it could go after offending companies on a case-by-case basis. This is exactly what Wheeler has in mind.

"We are not reticent to say, 'Excuse me, that's anti-competitive. Excuse me, that's self dealing. Excuse me, this is consumer abuse,'" said Wheeler on Tuesday. "I'm not smart enough to know what comes next [in innovation]. But I do think we are capable of saying, 'That's not right.' And there's no hesitation to do that."

So long as the FCC can argue that a company is hindering the rollout of broadband or broadband competition (a pretty vague definition), the agency may be able to regulate ISPs, content intermediaries, and possibly Web services like Google and Netflix themselves.

Hmmm. Maybe Wheeler has no hesitation to do that, but this basically puts net neutrality at the whim of the president. All it takes is a few FCC members who think net neutrality is a crock, and enforcement would end instantly. This is a pretty thin reed for supporters of net neutrality.

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