Network Neutrality Proposal Even Worse Than I Thought

Yesterday, I posted what seems like a highly read post about the FCC Chairman’s proposed net neutrality rules (for more about him, see here), why they’re full of loopholes and likely unenforceable, and why they break Obama’s campaign promises.

I called it, FCC Proposes Garbage, Calls it Net Neutrality.

Turns out, I was being too kind.

A few people have let me know two things.

One, the wireless exemption is worse than I claimed. The rule against blocking would apply to voice telephony and video telephony only–not to all video. So AT&T Wireless could block Netflix.  It would have to, instead, degrade (but not block!) video Skype.

Two, on the jurisdiction side, I guessed (in that post) that the FCC was talking about section 706(b) and mentioned my skepticism. Other lawyers marveled at my understatement. And noted that there is probably a notice issue: the FCC is supposed to provide notice of some things before issuing a rule. (A basic requirement of administrative law for rules is notice of the rule and comment on it.) So, I haven’t looked at all the details, but I’ll note the notice problem, on top of the problem that the section might just not apply, resulting in the FCC building its rule on a house of sand.

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