The Federal Communications Commission is expected to adopt a contentious set of rules Thursday that, in order to preserve the freedom of consumers and content providers online, dramatically limits the freedom that Time Warner Cable, AT&T and other Internet service providers have long enjoyed. Commission Chairman Tom Wheeler had hoped to craft rules that wouldn't involve so stark a trade-off. But in the end, the commission rightly judged that it was better to risk stifling innovation by Internet providers than to let ISPs stifle innovation by Internet users.
Net neutrality rules aim to prevent the companies that connect consumers to the Internet from influencing what their customers do online by prioritizing the traffic from selected content and service providers for a fee or otherwise favoring some sites' bits over competing sites' bytes. Such interference would fundamentally alter the Internet, transforming it gradually from a hotbed of new ideas into a curated selection of ISP-approved content — the online equivalent of cable TV. If the system allowed for vibrant competition among broadband ISPs, perhaps there would be no need for government regulation. But that's not the case: Most neighborhoods have only one or two options for truly high-speed Internet access.
The commission is crafting neutrality rules now because its last set was rejected in January 2014 by a federal appeals court. That ruling outlined two paths that the commission could follow: Either adopt flexible rules and respond to complaints against ISPs as they arise, or reclassify ISPs as utilities and flatly prohibit them from playing favorites. Although Wheeler initially favored the former approach, he eventually concluded that such rules would protect ISPs' interests more than consumers'. That's reason enough to switch tacks.
Wheeler's critics worry that reclassifying ISPs and imposing flat prohibitions on them will leave them with less room to innovate, while also potentially deterring the investment needed to speed and extend broadband connections to more homes. But what's driven the enormous investment in broadband networks so far hasn't been ISPs' ability to block or prioritize traffic. It's been the ever-growing demand for bandwidth that an endless supply of new sites, apps and services has created. In other words, rules to keep the Internet open for consumers and Web-based companies would preserve a virtuous cycle that has served ISPs very well indeed.
Nevertheless, it's crucial that the FCC strip down the common carrier rules to make sure they go no further than preserving neutrality in the last mile. It's impossible to judge Wheeler's current proposal because he hasn't made the details public. Still, until Congress gives the FCC new authority that's narrowly tailored to protecting net neutrality, the commission has to do the best it can with the tools available. That means picking which innovators to protect, and the commission appears poised to make the right choice.