The FCC's regulation by whim

"Net neutrality" bloggers are thrilled not only because the FCC ruled against Comcast, but because of the arbitrary nature of its decision. Ed Felten writes, under the title "Comcast Gets Slapped, But the FCC Wisely Leaves its Options Open": "But the majority, despite technical competence, avoided a bright line rule—and that might itself turn out to be great policy." He understands fully what the absence of a "bright line" means:

The majority decision, in finding Comcast’s activities collectively to be over the line from “reasonable network management,” leaves substantial uncertainty about where that line lies, which is another way of saying that the decision makes it hard for other ISPs to predict what kinds of network management, short of what Comcast did, would prompt sanctions in the future. ...
 
The Comcast ruling’s uncertainty guarantees a future of envelope-pushing and resource intensive, case-by-case adjudication, whether in regulatory proceedings or the courts. But I actually think that might be the best available alternative here. It preserves the Commission’s ability to make the right decision in future cases without having to guess, today, what precise rule would dictate those future results.

With specific rules, regulators indeed face uncertainty about whether they can implement their vision, and conversely private businesses know the ground rules (even if they're unreasonable) about what they can and can't do. This is as it should be. One cannot know the future, and regulators seeking arbitrary power in order to implement their predetermined vision only impose fear, uncertainty, and doubt on innovative business models, leading to stagnation. This undermines the "freedom to tinker" -- which is, ironically, the title of Felten's blog.

Harold Feld calls it regulation by adjudication. But adjudication, in the proper sense, can happen only when there is a clearly defined regulation to adjudicate. What the FCC has imposed on the Internet is regulation by whim. It's a deadly precedent.