Rulemaking by adjudication

"Net neutrality" advocates are cheering FCC chairman Kevin Martin's move to enforce a statement of principles against Comcast for its past packet-blocking practices. This policy statement (PDF) contains a footnote which states, "Accordingly, we are not adopting rules in this policy statement. The principles we adopt are subject to reasonable network management." That's a clear statement that it is not a binding rule. (See also Jerry Brito's post on the subject.) Harold Feld justifies this, in an answer to my comment, by calling it "rules by adjudication." This is another way of saying "making up the rules after the fact."

Those who want the FCC to have that kind of power should have longer memories. We're talking about the same Kevin Martin who's pushed draconian censorship of broadcasters. If he can treat policies as rules when it suits him, he can do it with anything, not just to achieve the outcome which you'd like at the moment. Advocates of massive government power always believe, in spite of mountains of past evidence, that the government will use it only to do what they want.

Comcast's action wasn't admirable, but that doesn't mean that government regulation of Internet traffic -- and all it implies -- is necessary to stop it. Comcast suffered bad publicity as a result, and there may be grounds for civil action on the basis of packet forgery and breach of contract.