Net Neutrality: If it’s not broke, don’t fix it

posted at 12:54 pm on April 4, 2011 by Jazz Shaw
[ Congress ]   

Last year we saw one of the first FCC votes on net neutrality pass with a 3-2 margin. The dissenting vote came from commissioner Robert McDowell, who was back in the news this week expressing lingering concerns over the direction the government is taking. He raises a few concerns which should be taken seriously, not least of which is the disturbing trend of legislators relying on the use of the word “reasonable” when crafting new rules.

McDowell was on the losing side in that narrow FCC vote three months ago, and he has been warning ever since against the hazy rules he sees developing under the banner of “net neutrality.”

The catch is that the 3-2 FCC vote left open the possibility of “reasonable” network management, and that single word — reasonable — stirs up a hornets nest, McDowell says.

In the linked interview McDowell is asked specifically about the importance of words in such matters.

You have warned that the term “reasonable management” of Internet networks is an accident waiting to happen. What do you fear will occur?

The word reasonable is perhaps the most litigated word in American history. What you are going to see is rule making by adjudication. You’ll see a lot of complaints filed by one competitor trying to block another competitor. There will continue to be lots of questions and uncertainty.

No one knows what this rule does yet. For instance, songwriters in Nashville are confused. Music labels are confused. No one knows how this will impact companies trying to stop music piracy.

When there’s confusion, it starts to chill action. We could inhibit constructive risk-taking.

He also brings up other points, including the well established rule that when Congress attempts to “fix” something which is not demonstrably broken, far more chaos and harm will come in its wake than measurable good. But this entire idea of “reasonable” regulation is absolutely worth another look.

Laws need to be precise, whether you agree with the fundamental concept or not. Failing to meet that bar results in an open window inviting inequity of enforcement. It’s not far afield from another problem – in an entirely different field – where sketchy wording led to a traffic jam in the courts… pornography and obscenity.

Most of us can recall the now famous comments of Justice Potter Stewart in 1964 when he said, “I know it when I see it.” The fact is, if we expect the legal system to deal with terms such as “reasonable” then the judicial branch is the only one of the three equipped to even attempt the task, and then only on a case by case basis. Using the term “reasonable” in any legislation or set of federal rules leaves open far too many interpretations of what is reasonable.

I’m still not entirely settled on the issue of net neutrality or whether or not some form of regulation is required to answer the questions facing the FCC, but I have to agree with Mr. McDowell that that the proposed rules are full of holes one could drive a truck through. If they are to dip a toe in this pool, a much better job must be done in crafting the wording. Additionally, Congress should be focused on solving problems. Might we not be rushing into this before we’ve even established that there is a problem seeking a solution?

Blowback