They can only enforce laws or rules. The former, according to the Constitution, must not be vague. And the latter have to be formally codified after due process (a notice of proposed rule making, public comment, hearings, etc.). What’s more, the agency has to have statutory authority to make and enforce the rules. (Federal law states that the Internet must remain “unfettered by State or Federal regulation,” so it appears that in fact the FCC does not have that authority — a point which Comcast is surely going to bring up in court.)

In short, the FCC legally cannot do anything within the realm of “network neutrality” — a term which, by the way, is so broad and poorly defined that it is semantically null — unless (a) it is legally authorized to do so by statute; and (b) it makes formal rules in a rule making process that allows public comment.

This is a good thing, because the Internet doesn’t need regulation. Despite the fact that three “network neutrality” bills have been introduced in Congress since 2005 and not a single one has passed, none of the dire predictions made by Free Press (AKA “Save the Internet”), Public Knowledge, the New America Foundation, or any other of Google’s lobbyists have come to pass. Thus, we can see that these organizations’ scare stories are just hype.

For a takeaway, perhaps this is why Verizon and AT&T want nothing to do with the string-encumbered broadband stimulus monies. (They’re now trying to define Broadband?!?! Spend first! Thinking later!)