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Editorial: Void for Vagueness?

ISPs have taken aim once again at the FCC’s network neutrality rules. Actually, most are taking aim for the first time, at least in an appeals court.

The last time around—in 2010—only Verizon wound up challenging the rules after FCC chairman Julius Genachowski got most players to the table for an agreement on compromise regulations.

In hindsight, Verizon did ISPs no favor by sticking to its court challenge, which cascaded into the common carrier (Title II)-based rules that the Tom Wheeler-led FCC approved.

This time around, telecom and cable ISPs by the droves have banded together to challenge Title II and the FCC’s catching-up of interconnection agreements in its neutrality net for the first time.

Among their biggest concerns is the vagueness of the FCC’s new rules and the conduct that could—surprise!—be found to violate them without any clear prior warning.

The court has set a Dec. 4 date for oral argument, which means absent the rule stay that the same court rejected, the FCC’s new regulations will be in effect until at least early 2016. That leaves a lot of opportunity for vague investment chilling by the FCC.

A congressional solution would be helpful, upholding the rules against blocking and throttling and paid prioritization while clarifying that broadband is not a common carrier—in fact, it is nothing if not an “uncommon” carrier that hardly fits in the telcom pigeonhole.

But legislators are busy trying to get themselves reelected, so that is a tough ask. Still, legislators on both sides continue to talk, which is more than they do on lots of other issues.

Nobody argues, or should argue, that the government has a role in ensuring broadband gets built out, just as it did in ensuring that electricity was available nationwide.

But the best way to do that is promote competition, subsidize service (in a fair system with as little waste, fraud and abuse as possible) and punish clearly anticompetitive behavior while not discouraging investment through vigorous enforcement of vague rules with insufficient notice.

The FCC can be a referee, but it can’t throw away the rule book and starting winging it.