The Art Of Kicking The Can: Uncertainty Rules When It Comes To Net Neutrality

The new Net Neutrality rules put off most of the hard questions—but who does that help and hurt? When government faces a tough decision, it has three options: “Aye,” “Nay,” or “Kay”—“Kick the Can.” Postponement is attractive, and the Obama administration’s 2010 Net Neutrality rule has transformed can-kicking, the traditional domain of small children, into an art form. In its rule the FCC has successfully put off almost all of the hard Net Neutrality questions that have been buzzing around since 2000 or so. It is a remarkable feat to write a rule that actually creates more uncertainty than no rule, but by golly, the agency has done it. If you’re the type that prizes certainty and clarity (i.e., most engineers, business people and investors), then manufacturing confusion may sound like insanity. But welcome to law school: good lawyers know that uncertainty has a power all of its own. So to really understand the Net Neutrality rule is not to bother understanding the rule itself, but rather the effects the uncertainty will create over the next 5 years or so. In simple win/lose terms, the effects are good news for the wireless (Verizon / AT&T) and Internet app (Google / Skype) companies, and, as we’ll see, something of a defeat for the cable industry. For users, the consequences are mixed. What you’ll probably notice most clearly is a sense of a growing gap between the wireline and wireless internet. The reason is that the whatever the wireless rules do (which is, of course, uncertain), they’ll have only a marginal effect on the practices in that industry.