While Chairman Waxman's draft bill should not be enacted

While Chairman Waxman's draft bill should not be enacted While Chairman Waxman's draft bill should not be enacted into law without modifications, it does, as I said, contain positive elements which provide a basis for continuing legislative efforts. Circulation of the draft should have the effect of clarifying certain fundamental principles that should guide the way forward.

First, the draft bill should cement the still growing, and already large, bipartisan consensus that the FCC should not adopt net neutrality mandates in the absence of legislation granting the agency authority to do so. No one is arguing that there is any present market failure or pattern of abusive practices causing consumer harm requiring hasty remedial action. Chairman Genachowski says he wants to "preserve the freedom and openness of the Internet." Even the Free Press organization, the most vociferous net neutrality advocate, suggests the government needs to act "to ensure that the Internet remains open for everyone." In other words, the claim of net neutrality advocates is not that it is urgent for new laws or regulations to be adopted to remedy a market failure; rather they want to take anticipatory action to, in their own words, ensure that the Internet remains open in the future.

In this circumstance, and having in mind the law of unintended consequences and the FCC's history of bureaucratic overreach, a persuasive case can be made that neither the FCC nor Congress need take any action unless and until a marketplace failure or consumer harms become evident.