This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The Federal Communications Commission has used authority it may not have to ban behavior that hasn't yet happened in a brave new world that nobody really rules.
But the possibility of the kind of corporate takeover of the Internet that FCC Chairman Julius Genachowski fears is real enough that the commission's decision to move forward with its so-called net neutrality rules was the correct one. It now falls to the courts and, ultimately, to Congress to decide the proper 21st century role of a regulatory apparatus designed for 19th century technology.
The details of the regulatory structure that the FCC approved Tuesday, on a 3-2 party-line vote, are yet to come. But they are reportedly focused on the concern that the big Internet service providers such as Comcast and Time Warner might erect toll gates, or outright barriers, to content providers that compete with the ISPs' own investments in such things as streaming video or search engines.
It may seem ironic that the hand of big government is necessary to keep the Internet as free as it has been from the beginning. And Republicans in Congress, along with the two GOP FCC commissioners who voted against the rules, are already in full dudgeon against the idea that the government has any business regulating the Internet at all.
But, while there are as yet no real horror stories to support Genachowski's claim that Comcast might cut off Netflix, or that Verizon might block YouTube, there can be no question that the giants of the ISP world would be technically capable of doing just that.
Of course, it's not that simple.
For one thing, the keepers of the Information Highway do have a legitimate interest in managing the flow of data so that a few users don't clog up the whole system. So the rules, as they have been explained, may have more bark than bite.
ISPs would be banned from engaging in "unreasonable discrimination" in blocking, or charging extra fees for, content that the ISP itself doesn't own. But "unreasonable" is not defined, and complaints against providers are to be considered on a case-by-case basis.
It is all headed for court anyway, as the laws that empower the FCC were written well before the Internet was even a dream and don't explicitly give any federal agency the right to control it.
Soon, Congress is going to have to decide what kind of power the FCC should have, with guidance as to what kind of behavior it wants prohibited, all with the interest of the public foremost in mind.