Don’t let net neutrality become the Internet’s Trojan Horse
By FRED CAMPBELL
The Federal Communications Commission is poised to break the Internet this month unless Congress intervenes.
It is widely expected that the FCC will vote to regulate the dynamic, open Internet as a public utility under “Title II” of the Communications Act — a 1930s regulatory approach that would allow the FCC to set the rates, terms and conditions for broadband Internet access and regulate edge providers like Google and Apple.
“Net neutrality” is the ostensible reason for imposing Title II regulation on the Internet, but it’s really a Trojan Horse intended to give public utility advocates a platform to argue for more expansive Internet regulation down the road. The principles of net neutrality were first adopted by the FCC a decade ago under its ancillary authority, and generally prohibit Internet service providers from blocking or unreasonably discriminating in the transmission of lawful Internet traffic. After a federal court overturned the FCC’s net neutrality rules last year, however, public utility advocates seized the opportunity to push full-blown public utility regulation, arguing that Title II is the only sustainable path to net neutrality.
The fact is, legislation is a simpler and shorter path to net neutrality that offers less risk and a more democratic process. If Title II advocates were motivated solely by net neutrality, they would embrace a bipartisan legislative solution.
Congress has already proposed legislation that would accomplish the goals of net neutrality without the threats to innovation and investment that are inherent in a Title II approach adopted by administrative fiat. Though many Republicans don’t believe government intervention is required to preserve the open Internet, they have offered to work with their Democratic colleagues and the president in good faith on net neutrality legislation in order to avoid the pitfalls of Title II and the uncertainty of litigation that is bound to occur if the FCC acts on its own.
Congressional legislation is by the far the surest way to turn net neutrality principles into sustainable rules with broad support. Yet Title II advocates have roundly rebuffed the Republican effort and urged the FCC to move forward without Congressional input. It seems the real goal of these advocates is to swing the gates wide open to full-blown public utility regulation of the Internet.
That would be a mistake. FCC Chairman Wheeler should give Congress time to work toward a bipartisan consensus rather than pull a net neutrality Trojan Horse filled with Title II warriors into the commission meeting room later this month.
Decades of experience with Title II regulation of the telephone network has shown that it does more harm than good, “partly by enhancing industry influence on politicians and regulators, and partly by distorting prices and discouraging investment and innovation,” says Bruce Owen, a senior fellow at the Stanford Institute on Economic Policy Research. That’s why there has long been widespread, bipartisan agreement that the Internet should remain free of these 1930s-era regulations.
The Internet became a global engine of economic growth, political discourse, and cultural transformation without centralized governance of its technologies or access policies. Its structure and standards were largely developed through the voluntary efforts of individuals like David Clark, an Internet pioneer who famously said, “We reject: kings, presidents, and voting. We believe in: rough consensus and running code.”
As the 21st Century dawned, the Federal Communications Commission determined that a minimal regulatory approach is the best way to promote competition and encourage investment in next-generation Internet services. Rather than impose the same Title II regulation that plagued innovation and investment in the telephone network, the FCC chose to rely on net neutrality principles to protect the open character of the Internet.
This approach to broadband policy has proven incredibly successful. In the year 2000, only 4.4 percent of American households had a broadband connection at home. Today, 82 percent of the population has access to broadband networks offering download speeds of 50 Mbps or more.
According to a report released by the White House in 2012, telecommunications firms are making enormous investments in broadband infrastructure, the U.S. is leading the world in wireless broadband, and content companies are taking advantage of low barriers to entry and an open Internet — all without Title II regulation. In fact, later that same year, the White House opposed an international proposal to extend Title II-style telephone regulations to the Internet because “the development of such a formal regulatory regime could risk undermining its growth,” something that is as true today as it was then.
In his State of the Union Address, President Obama said, “I commit to every Republican here tonight that I will not only seek out your ideas, I will seek to work with you to make this country stronger.” I hope he honors his commitment and joins his party in working with Republicans on net neutrality legislation. Like the president, “I still believe that together, we can do great things, even when the odds are long.”
Fred Campbell is executive director of the Center for Boundless Innovation in Technology