At least for the foreseeable future—legal challenges are not yet exhausted—the FCC has been empowered by the courts to regulate Internet Access Providers as common carriers. That means, notably, applying a general conduct standard to whatever business models don’t strike the FCC’s fancy. And it means applying the same rules to mobile broadband.
Looked at one way, a general conduct standard helps keep regulatory eyes on practices that may be under the radar. Looked at another, it could provide broad government power to nip something in the bud, or discourage the seed from even being planted. It will depend on how the power is used, and that will depend on which administration is in power. That is the downside to that “regulatory flexibility.”
There is something to be said for at least having a consistent approach, particularly given that mobile devices are quickly becoming the internet access device of choice.
But that leads us to what remains problematic, both in the context of this proceeding, and the related broadband privacy proceeding: While ISPs are pilloried as virtual monopolists and exploitive gatekeepers, edge providers get pretty much of a pass as though they were all still kids in garages mainlining energy drinks while the world was changing.
We understand the concern about powerful companies controlling a world-transforming and dominating technology most of us need and use, one we do not understand at the level at which it could be used anti-competitively without our knowledge.
But the rhetorical pillorying of ISPs must be viewed against the relative silence about the potential under-the-radar powers of edge providers—big search engines come to mind—that also control mystical technologies, including the oft-cited algorithms that make some of us wish we had paid more attention in math class.
Yes, how we get onto the web is a power to be reckoned with, but where we go once we get there is also a potentially anticompetitive force that this administration does not seem nearly so eager to reckon with in the regulatory space.
