By Media Freedom, Special for USDR.
MediaFreedom is disappointed that the DC Circuit chose not stay the FCC’s radical Net Neutrality Order. Consequently, the agency’s “clear” 400-page rule will go into effect, and remain so, until at least resolution of the current dispute, which will be about two-years from now. In the meantime, broadband providers will have to bear immediate and irreparable harm with the significant cost of complying with the massive rule and its “I-know-it-when I-see-it” complexities and capriciousness.
But they won’t be alone.
The FCC’s dubious new authority bans commonplace, pro-consumer behavior not just for broadband providers, but their potential partners, too – meaning that even non-Internet companies will immediately suffer, being stopped from innovating on the Internet as they see fit. Moreover, the FCC and its “virtuous circle” reasoning brings within the agency’s ambit every corner of the Internet ecosystem in order to “protect” it. This unprecedented power will not go un-used. Even before the Order was to take effect, the FCC was busy issuing warnings and threats to “guide” the ecosystem to its liking, intending to chill behavior. As the rule goes into effect, expect for this activity only to increase as the FCC seeks to prove it was right in working to save the Internet from itself with its new rule. Its main tool – e.g., the Order’s vague “Internet conduct standard” – will be wielded liberally to police all Internet actors in order to curb perceived – but not real – “abuses.” Permissionless Internet innovation will grind to a halt.
The FCC never needed to issue the President’s spurious, politically-motivated rule. But it did. It flies in the face of four decades of successful policy deregulation, which, through only a minimum of government policing, birthed the Internet ecosystem that we love and use daily. Far from protecting that, the Order sets the FCC up as the Department of Internet Innovation – circa 1934 – which will greatly damage future pro-consumer, pro-society growth, investment and development of the medium.
Ultimately, MediaFreedom believes the Order will be overturned. It’s numerous procedural manipulations should invite wide judicial skepticism and ridicule. But the rule’s constitutional infirmities, which offend the First and Fifth Amendments, seem most glaring to us, truly dooming the Order and its mandates. If that’s the silver lining, then we’ll take it. It’s sad, however, that the ecosystem has to be dragged through this time-consuming and expensive process to reach that end.