Declan McCullagh is wondering about that secret framework the FCC has discovered:
Details of the FCC’s ruling, which may not be available for a few weeks, remain unclear. While Comcast will face no fine, Martin said the FCC has adopted a new legal “framework” that will let federal bureaucrats deem whether future network management practices are permissible. The dissenting Republicans said they did not receive the final text of the order until late last night–it apparently includes a variant of a “strict scrutiny” test usually reserved to judge whether government policies are legal or not–and it is not yet public.
I think this secret framework is the most interesting part of today’s news, and the delay in the publication of the FCC’s order reflects the difficulty they’re having in making it up.
Technorati Tags: net neutrality, FCC, broadband, pandering
What this shows is that Free Press has successfully bamboozled three members of the Commission into mistaking Comcast for an arm of the government. (That’s where the phrase “strict scrutiny” comes from: cases testing whether government had unconstitutionally constrained speech.) Since I do not think it likely that Comcast will be nationalized anytime soon, I wonder what basis there could be for this in law. What’s more, Comcast was not constraining “speech” — its restrictions on P2P traffic were content-agnostic. It might have been said to be restricting the “time, place, and manner” of some Internet activities, but remember, that’s something that even government IS allowed to do.
Indeed.