Last week’s vote by the FCC on net neutrality rules raises new concerns and resolves very little about keeping an open internet. Let’s start with the basic issue of whether the FCC has jurisdiction to regulate the internet. Most commentators agree that the FCC has overreached its grant of authority and that legal challenges are all but certain. Is the FCC regulating or legislating? In all probability, providers that do not fare well under the proposed net neutrality rules may decide to challenge the FCC’s jurisdiction in court.

The new rules prohibit broadband or wired line providers from blocking access to services, applications and legal content, and from “unreasonably” discriminating against traffic on their networks – no such strict restrictions are placed on wireless or mobile broadband providers. Why should the FCC treat wireless providers differently than fixed line broadband providers? Do the so-called technological challenges faced by the wireless industry justify the disparate treatment?   Are we concerned that more consumers, including minorities and the poor, use wireless devices to access the internet?

Why does the FCC discourage but not flat out ban "paid prioritization" by wired line broad brand providers? Does this rule create a risk that two internets will develop – one for the moneyed haves and a second for the non-moneyed have-nots? 

The new rules are a tangible victory for ISPs, and give these providers the wiggle room to capitalize on usage based pricing. For example, a broadband provider could theoretically charge an access fee for a movie streaming service such as Netflix over a wireless connection. The FCC’s distinction between fixed-broadband and wireless networks may recognize that wireless networks are more constrained in terms of bandwidth, so under the new rules a smaller set of applications is offered protection specifically on wireless networks.

While the FCC maintains that it will monitor the markets for abuses and “discourage” them, the question is whether the FCC will be able to enforce the rules given that the language is so tame. In the meantime, the FCC’s apparent lack of jurisdiction over the internet begs for someone to pick this fight.