Julian Sanchez wrote a thoughtful critique of the FCC's decision yesterday. There's a lot there, but his main theme is simply that we should be skeptical of adopting rules like these because of the potential unknown consequences (on investment, network construction, etc.). A few thoughts...
First, it's a small point, but I don't think his analogy to constitutional avoidance works. The reason that judges avoid constitutional questions has less to do with pragmatic fears of messing up the basic "architecture," and more to do with legitimacy. Constitutional decisions can't be changed by Congress. But anyhoo...
The main argument is that rules cause unintended consequences. That's certainly true in many contexts. It's less true, however, in the open networks debate.
I mean, it really just depends on where you're starting from. Sanchez argues that we should be skeptical of big change. I would respond that the FCC is merely protecting a successful -- a wildly, ridiculously, and insanely successful -- status quo. It is Comcast who is playing dice with the Internet's basic architecture. If anyone is causing unknown risk, it's them.
One benefit of Internet openness is that you don't have know anything about the underlying physical network to introduce new services. The founders of Twitter, for instance, didn't have to call Comcast and say "Hey, if I launch this, will you block it?" They also didn't have to coordinate with Comcast's network engineers. This openness -- and ease of entry -- is one of the Internet's greatest virtues. (Professor Barbara van Schewick has a forthcoming book that lays out these economic and architectural arguments in detail).
Comcast threatens these traditions in a very fundamental way. For instance, if you have a new service that uses peer-to-peer protocols, things are much different if you have to worry about it getting blocked. This behavior triggers all sorts of negative consequences -- higher negotiation costs, higher cost of startup investment, encryption arm races, etc. In fact, it may have already triggered all these consequences -- thus the need for a very forceful stand by the FCC right now.
In short, the FCC's action is less risky because we've seen these rules in action for decades. And they have -- to say the least -- been very successful. I have no idea what a world of secret blocking will look like. And I don't care to find out. The negative consequences of this hypothetical world seem far more tangible than Sanchez's fear of duplicative network facilities.
(And as I've said before, I'm helping with briefs adverse to Comcast on these issues).