In further evidence that elections matter, the FCC is taking an aggressive step tomorrow toward protecting open networks (a more accurate term than "net neutrality"). The WSJ reported on Saturday:
The U.S. government plans to propose broad new rules Monday that would force Internet providers to treat all Web traffic equally[.]
The FCC has four "net neutrality" principles . . . . Mr. Genachowski is expected to propose the agency clarify its current principles and turn them into formal rules. He will also tack on a new one, which would require carriers practice "reasonable" network management. The agency will ask for guidance on how to define "reasonable."
A few points here. First, this is obviously good news. Even if the final measures are ultimately more modest, part of this battle is simply about establishing norms.
Second, the issue to watch is whether the FCC actually puts these "principles" into formal rules. The WSJ suggests that they will, but it's not entirely clear.
Right now, the FCC has an informal "Policy Statement" protecting open networks. This Policy Statement isn't itself binding -- the idea is that the Policy Statement clarifies how the FCC interprets other sources of legal authority. It's sort of like a signing statement in that respect -- it doesn't technically create authority, but it effectively does so by indicating how the FCC interprets and applies its powers.
One question then is whether the FCC will simply add to this Policy Statement, or whether they'll actually put the whole thing into formal rules.
I much prefer rules. The reason is that Republicans will (sadly) once again rule the FCC one day. And it's much harder to reverse formal rules (for you law dawgs, it requires notice-and-comment proceedings, etc.). As long as these principles remain in the informal Policy Statement, however, it means that the FCC is enforcing these policies only through adjudication. And adjudications can be easily changed at any time.
Third, arguably the best part about the FCC's announcement is that they're applying these principles to wireless carriers too. That's huge -- regardless of whatever else happens.
Anyway, it will be interesting to hear what the FCC actually says tomorrow.