Subtle lawyering got the FCC into its current mess. More of the same is not the right way forward.
Telecom lawyers just can't stop coming up with complicated answers to simple problems.
The reason the FCC lost its net neutrality case at the DC Circuit was simple. It tried to both de-regulate broadband access, by classifying it as an “information service” (something like a website or a social network), while applying traditional “telecommunications” rules to it–things like prohibitions on blocking content and discriminating against competing services. The DC Circuit Court of Appeals said–sorry, FCC. If you want to treat broadband access like a communications service, you need to formally classify it as one. Clever legal tricks aren't going to get you around this.
Apart from that legal technicality, the court did find that the FCC put forward a good case as to why net neutrality rules are needed. Reclassifying broadband access is a clear, and importantly, simple path toward bringing back these important protections, in a way that is on much firmer legal footing.
Consumers, creators, and technologists are currently without the safeguards that net neutrality provides because the FCC and the telecommunications bar generally has too many smart lawyers who can turn simple policy questions into unending legal exegesis. The FCC spends far too much time metaphysically parsing the nature of its authority, pondering puzzles and paradoxes that it made up in the first place, and engaging in word games. This is great for lawyers who bill for their time (not me, sadly) but not great for the public. It would be better if the FCC focused on doing the right thing to promote a competitive and open communications systems, instead of constantly trying to figure out whether it has the authority to do anything at all, and how to phrase things so that its rules don't get thrown out.
Right now, a number of people are pushing the idea that the FCC should address net neutrality problems “case by case” instead of by enacting protective rules. Case-by-case adjudication makes sense in a lot of circumstances, and it can be a flexible approach that can better take into account changing circumstances than overly-prescriptive rules. That said, the problem with “overly prescriptive” rules is that they are overly prescriptive, not that they are rules. Adjudicators need some kind of standard to go by–it's impossible to issue a ruling on a controversy simply by appealing to the Great Spirit of Telcom or even by looking to extremely broad ideas like “competition” or “consumer harm.” Useful standards for adjudicators to apply would look an awful lot like net neutrality rules to begin with.
That aside, viewing adjudication as a substitute for rules is misguided. Both have a place and both exist today. What's more, after cases are decided, they serve as precedent, and precedents function the same way as rules in our legal system. To be sure, the advantage of the precedential, “common law” approach is that it is flexible. But that is also the advantage of an expert agency like the FCC, whose rules are never set in stone and who can change them as circumstances warrant. (By the way, it would be the same agency–the FCC–in charge of the process whether it's more rule-oriented or case-oriented.)
For all its flaws as an agency, the FCC has done a good job for decades in ensuring that telecommunications, properly classified, are operated in a non-discriminatory way. You can place a phone call from one company to another and be sure that it will go through, and you can call any business that has a phone number, not just the ones that have paid for special treatment from your provider.
We're in a bad place with net neutrality right now because the FCC got itself tied up in a knot with subtle lawyering. Instead of building on its successes as a telecommunications regulator it tried to come up with a “third way.” I'm skeptical that yet more subtle lawyering–a fourth way or a fifth way–is going to save us. FCC Chairman Wheeler should look to the precedent set by another leader and straightforwardly disentangle the FCC.
Picture from Flickr user cornishcarolin