With the FCC trying to use its legal fight with Comcast to push for net neutrality
, an appeals court has pointed out that the FCC doesn't have any legal basis
for policing net neutrality. This is a point that we've made in the past, when we found it odd that the same groups that fought
like dogs to have a court say that the FCC had no mandate
to enforce a "broadcast flag" were the same groups that suddenly thought the FCC had a mandate over net neutrality
The truth -- as courts have recognized in both cases -- is that both appear to be situations where the FCC is overreaching its authority.
Still, it's not just the groups supporting the FCC on net neutrality that are taking inconsistent positions here. Remember how Comcast -- which this latest ruling supports -- has in the past used the argument that the FCC does have this mandate over them
to try to avoid regulatory oversight in California. So neither side looks very good here. In fact, in a recent interview concerning the proposed Comcast/NBC merger, Comcast's spokesperson highlighted that people shouldn't be afraid of NBC getting preferential treatment because "existing law already prohibits any discrimination."
What existing law? Uh, the same one Comcast just convinced the court doesn't exist. In other words, the law doesn't exist when Comcast doesn't like it, but if anyone says Comcast might violate neutrality, it insists the law suddenly does exist.
On the whole, it's a good thing that the court is making sure the FCC doesn't overstep its authority here -- though, there's a pretty good chance that the response is going to be a push in Congress to give the FCC this authority. And that's where things get sticky. Should the FCC have the right to regulate the internet? While the concept
of net neutrality is important and it would be bad for it to go away, that's quite different than opening up the pandora's box of giving the FCC the right to enforce it. The risk of unintended (and dangerous) consequences is quite high
Instead, the real focus should be on increasing competition
in the broadband space so that users have a real choice and can ditch any provider who decides to ignore the principles behind net neutrality. Until that happens then we're going continue to have these battles over the symptoms
of not enough competition.