Whatever you think of the FCC’s decision to reclassify Internet access under Title II common carrier regulations, the fact that 3 million people advocated for an open and free Internet should not be the reason an independent agency does anything, any more than millions of Republicans or Democrats wanting a certain presidential outcome should determine how judges rule on hanging chads.
In such matters, mob rule does not rule, under any circumstances. Not even a well-meaning “mob,” encouraged to see Title II as the only thing standing between them and evil Internet service providers bent on blocking, and degrading, and controlling them from their gold-plated towers.
It was this page’s same argument when Janet Jackson’s Justin Timberlake-aided wardrobe malfunction drew a then-record crowd of offended viewers (not all of whom were actual “viewers”) to the FCC’s indecency docket. The commission cited that volume in justifying its indecency crackdown—that and the Hill pressure on the FCC that was generated by all those comments. But even three million people is about 1% of the population, which, the last time we looked, was hardly a majority.
The FCC can’t stick its finger in the wind and go by the will of a vocal minority. If it does, then it hardly deserves the chevron deference it’s always invoking in court to back its decisions. “Chevron” refers to the court’s general policy of according some deference to agency decisions, given that they are supposed to be the expert agency in their field.
Title II may turn out OK if it is applied as gingerly as the FCC majority promises. Or, some future FCC may try to extend it into rate regulation and unbundling in the name of advanced telecom deployment. It is too early to tell, but some of the language in the order is not comforting to rate regulation foes. Regulation is not a position popularity contest. The 50,000,000 Elvis Fans Can’t Be Wrong philosophy does not apply. Whatever the result of the Title II decision, the FCC majority has to own it based on their expert judgment, not on a public comment head count.