Yesterday the FCC released their report on their decision against Comcast’s secret degredation of BitTorrent protocol traffic. The basic content of this ruling has been known since early August. It nominally states that Comcast violated federal rules for “reasonable network management.” Network neutrality proponents have been quick to applaud the FCC’s ruling. Certainly, this action violates a hands-off, network neutral approach. However, the extremely important and surprisingly overlooked subtext is that supporting the FCC’s ruling implicitly accepts that the FCC should regulate the operation of ISPs, and effectively, the Internet itself. The end result of regulating the Internet is to seriously muffle the creativity and innovation that has made the Internet great.

Some commentators are avoiding the discussion of the FCC’s jurisdiction in this matter, but it is absolutely the most important aspect of this ruling. The FCC’s five commissioners voted to take action 3 votes to 2. Both Commissioner McDowell and Commissioner Tate have released separate dissenting statements intimating that the FCC shouldn’t be involved in this type of decision. Commissioner McDowell wrote an editorial in the Washington Post several weeks ago defending the incredible growth of the Internet as the result of “the principle that engineers, not politicians or bureaucrats, should solve engineering problems.”

In fact, Comcast and BitTorrent had already agreed to work out an amicable solution to these engineering problems way back in March. Of course, the folks at Freedom to Tinker are right that this isn’t really a two party discussion between Comcast and BitTorrent, but the point is that Comcast was working towards fixing these problems well before the FCC took a regulatory action.

ISPs have always had the ability to solve network problems as they happen without fearing a fine. Government regulation would hamper these efforts. Politicians are concerned about this chilling effect. Kevin Martin, who is the Republican-appointed Chairman of the FCC and who voted in favor of taking action against Comcast, faced significant political pressure prior to the release of the opinion. House Minority Leader John Boehner wrote a letter to Martin to express “dismay” that he was “intend[ing] to interfere with the network management decisions of broadband providers, essentially regulating the Internet.”

Supporters of the FCC’s actions, such as Brett Frischmann, may find the FCC’s use of the phrase “reasonable network management” to provide sufficient wiggle room for analyzing actions on a case-by-case basis, but the phrase “reasonable network management” is not as innocuous as it may seem. Sure, there’s a lot of ambiguity in the word ‘reasonable,’ but adopting this phrase as a de facto standard would destroy creativity and innovation. Here’s what George Bernard Shaw had to say about reasonableness:

The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.

This has certainly been true of the Internet, where virtually every major advance seems to have come as a complete shock to the vast majority of experts in the field. Paul Graham talks about this a lot. Most recently he mentioned it in the context of fundraising for startups:

A good startup idea has to be not just good but novel. And to be both good and novel, an idea probably has to seem bad to most people, or someone would already be doing it and it wouldn’t be novel.

Don’t lose sight of this bigger picture like the FCC has: Regulating network neutrality doesn’t work out well for anyone in the long run because creativity and innovation depend on the ability to be “unreasonable” at times.