Net Neutrality Enforcement: If You Love Something . . .
If you love something, set it free; if it comes back it's yours, if it doesn't, it never was. -Richard Bach
If the quote hasn't tipped you off yet, this is where I stop "hating on" the FCC's NPRM and proposed rules, for all their silliness, and start getting constructive. This is why I wanted to "change gears" with a quote that has been repeated enough to become a full-fledged, diabetes-cavity-inducing cliché of sweetness. Yet if the expression wasn't eloquent, or relevant, it would have never gained the popularity it has; which is why it made its way into the Net Neutrality NPRM (well sort of). So kick back a little, click on to this saccherine-sweet little ditty, and open up your NPRM. In Paragraph 81, the Commission asks one of the most--perhaps THE MOST--prescient questions in the entire NPRM.
In essence, the Paragraph asks for comment on how the adoption of Net Neutrality rules (by the Commission) would be enforced by the Commission. This is a good question, because the Commission is not really built to investigate and enforce complex fact patterns. For example, the Paperwork Reduction Act requires the Commission to seek public comment (allowing at least 30 days for public comment and replies), and obtain Office of Management and Budget approval (allowing the OMB at least 60 days to make a decision on the agency's request) before seeking information from more than 10 parties.
For a "data driven" Commission, this is more than just a hassle; it presents a real enforcement hurdle--especially for the most egregious and difficult cases. Moreover, these investigatory handicaps are further limited by the fact that the Commission can only enforce violations of its rules occurring within the last year; that's right, a one year statute of limitations. Add to that the fact that the Commission has further legal and personnel resource handicaps and it would seem to make the FCC an unlikely sole enforcer of the most anticompetitive, anti-consumer, concerns proscribed by the proposed rules.
So, this is a very real conundrum--and probably deserves a lot more explanation and consideration than given in the NPRM. The question is this: what if the Commission passes rules and the FCC is the ONLY agency (aside from private parties) that can enforce the rules? Furthermore, what if the only vehicle for private party redress were under the Communications Act? This has distinct disadvantages to the public, in that the antitrust laws allow for enforcement by the Department of Justice, the Federal Trade Commission, the state attorneys general, and private parties. Moreover, the antitrust laws allow prevailing plaintiffs--including states on behalf of their citizenry--to collect three times actual damages suffered, plus attorneys fees; additionally, the antitrust laws have a 4 year statute of limitations and broad discovery rights for plaintiffs.
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