In the defense of FCC Chairman Genachowski’s proposal to adopt an “lite Title II” regulatory framework for Internet transmission services, Austin Schlick (General Counsel of FCC) is using an often repeated argument that the certainty of regulation is better than the uncertainty of impending regulation.  Schlick argued:

“If anyone in this room believes you’re going to a world of regulatory certainty under the current regime to a world of regulatory uncertainty under the approach I’ve been discussing … I think you’re wrong. I think there’s more certainty under this approach than you’ve had.”

There are a few problems with this line of argument.  For one thing, regulation has never been and never will be fixed in stone.  FCC Commissioner Copps said during the announcement of the FCC’s proposed Net Neutrality rules that what the FCC views as reasonable ISP business/management practice today may not be viewed reasonable in the future.  Schlick even acknowledged that: “this chairman may be well-intentioned, but future commission may want to “unforbear” – that is, bring back more stringent restrictions this FCC plans to ignore.”  Never mind future FCC chairmen, the current one is already starting to unforbear.

Barely a few weeks after Genachowski said that the FCC has never reversed forbearance, the unforbearing has already begun do to pressure from interest groups.  The proponents of Title II regulation have made it clear that the current “lite” proposal is just the beginning.  They’ve made it clear that they want the FCC to go further such as mandating wholesale access at government regulated prices, so what gets unforbeared next?

The idea that the certainty of regulation is better than the uncertainty of proposed regulations is a strange one.  It’s like saying that if we fear getting hit by a fastball from a wild pitcher, then it’s better to just stand on top of the plate so that we have some certainty that we will get hit by that baseball.  By using a definition of “discrimination” that is legally and economically dubious, The FCC’s proposed Net Neutrality rules would prohibit ISPs from offering enhanced services that content providers want thereby denying ISPs a entire class of customers and denying content providers of services that they want.  While uncertainty is generally a bad thing, having the “certainty” of these bad regulations is far worse.