We've been pointing this out for years, but it seems that many of the "tech elite" are so focused on the phrase "net neutrality" that they're willing to jump on any sort of regulation that says it's "net neutrality." So, it's nice to see that the EFF is not following suit, but instead is warning that the FCC does not have the regulatory mandate to do what it's trying to do
with net neutrality -- and if it is given that control, it will inevitably lead to much more internet regulation that we will all come to regret.
We're wholly in favor of net neutrality in practice, but a finding of ancillary jurisdiction here would give the FCC pretty much boundless authority to regulate the Internet for whatever it sees fit. And that kind of unrestrained authority makes us nervous about follow-on initiatives like broadcast flags and indecency campaigns. In general, we think arguments that regulating the Internet is "ancillary" to some other regulatory authority that the FCC has been granted just don't have sufficient limitations to stop bad FCC behavior in the future and create the "Trojan horse" risk we have long warned about.
In discussing this stance with Wired, Abigail Phillips, a staff attorney at the EFF said she wasn't sure what "the right solution is"
to the question of keeping the basic end-to-end principles of the internet in place. I still don't think the "solution" is that complex. For over five years I've been pointing out that if there was real competition
in the marketplace, net neutrality wouldn't even be an issue, because customers would go to ISPs that didn't discriminate. The real problem is how deeply connected our government is to a very small number of giant broadband providers. They've set the game up so that there's very little real competition, which allows those ISPs to pull stunts like trying to doublecharge, favor certain content, and do metered billing. Get more competition, and none of those things fly.