The FCC's Threat to Internet Freedom

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'Net neutrality' sounds nice, but the Web is working fine now. The new rules will inhibit investment, deter innovation and create a billable-hours bonanza for lawyers.

By ROBERT M. MCDOWELL

Tomorrow morning the Federal Communications Commission (FCC) will mark the winter solstice by taking an unprecedented step to expand government's reach into the Internet by attempting to regulate its inner workings. In doing so, the agency will circumvent Congress and disregard a recent court ruling.

How did the FCC get here?

For years, proponents of so-called "net neutrality" have been calling for strong regulation of broadband "on-ramps" to the Internet, like those provided by your local cable or phone companies. Rules are needed, the argument goes, to ensure that the Internet remains open and free, and to discourage broadband providers from thwarting consumer demand. That sounds good if you say it fast.

Nothing is broken that needs fixing, however. The Internet has been open and freedom-enhancing since it was spun off from a government research project in the early 1990s. Its nature as a diffuse and dynamic global network of networks defies top-down authority. Ample laws to protect consumers already exist. Furthermore, the Obama Justice Department and the European Commission both decided this year that net-neutrality regulation was unnecessary and might deter investment in next-generation Internet technology and infrastructure.

Analysts and broadband companies of all sizes have told the FCC that new rules are likely to have the perverse effect of inhibiting capital investment, deterring innovation, raising operating costs, and ultimately increasing consumer prices. Others maintain that the new rules will kill jobs. By moving forward with Internet rules anyway, the FCC is not living up to its promise of being "data driven" in its pursuit of mandates—i.e., listening to the needs of the market.

Columnist Holman Jenkins on the FCC's net neutrality regulations.

It wasn't long ago that bipartisan and international consensus centered on insulating the Internet from regulation. This policy was a bright hallmark of the Clinton administration, which oversaw the Internet's privatization. Over time, however, the call for more Internet regulation became imbedded into a 2008 presidential campaign promise by then-Sen. Barack Obama. So here we are.

Last year, FCC Chairman Julius Genachowski started to fulfill this promise by proposing rules using a legal theory from an earlier commission decision (from which I had dissented in 2008) that was under court review. So confident were they in their case, FCC lawyers told the federal court of appeals in Washington, D.C., that their theory gave the agency the authority to regulate broadband rates, even though Congress has never given the FCC the power to regulate the Internet. FCC leaders seemed caught off guard by the extent of the court's April 6 rebuke of the commission's regulatory overreach.

In May, the FCC leadership floated the idea of deeming complex and dynamic Internet services equivalent to old-fashioned monopoly phone services, thereby triggering price-and-terms regulations that originated in the 1880s. The announcement produced what has become a rare event in Washington: A large, bipartisan majority of Congress agreeing on something. More than 300 members of Congress, including 86 Democrats, contacted the FCC to implore it to stop pursuing Internet regulation and to defer to Capitol Hill.

Facing a powerful congressional backlash, the FCC temporarily changed tack and convened negotiations over the summer with a select group of industry representatives and proponents of Internet regulation. Curiously, the commission abruptly dissolved the talks after Google and Verizon, former Internet-policy rivals, announced their own side agreement for a legislative blueprint. Yes, the effort to reach consensus was derailed by . . . consensus.

After a long August silence, it appeared that the FCC would defer to Congress after all. Agency officials began working with House Energy and Commerce Committee Chairman Henry Waxman on a draft bill codifying network management rules. No Republican members endorsed the measure. Later, proponents abandoned the congressional effort to regulate the Net.

Still feeling quixotic pressure to fight an imaginary problem, the FCC leadership this fall pushed a small group of hand-picked industry players toward a "choice" between a bad option (broad regulation already struck down in April by the D.C. federal appeals court) or a worse option (phone monopoly-style regulation). Experiencing more coercion than consensus or compromise, a smaller industry group on Dec. 1 gave qualified support for the bad option. The FCC's action will spark a billable-hours bonanza as lawyers litigate the meaning of "reasonable" network management for years to come. How's that for regulatory certainty?

To date, the FCC hasn't ruled out increasing its power further by using the phone monopoly laws, directly or indirectly regulating rates someday, or expanding its reach deeper into mobile broadband services. The most expansive regulatory regimes frequently started out modest and innocuous before incrementally growing into heavy-handed behemoths.

On this winter solstice, we will witness jaw-dropping interventionist chutzpah as the FCC bypasses branches of our government in the dogged pursuit of needless and harmful regulation. The darkest day of the year may end up marking the beginning of a long winter's night for Internet freedom.

Mr. McDowell is a Republican commissioner of the Federal Communications Commission.

Ya they will shut this site down next year.

Were just a little website. They will go after the big boys first then this site. So the following year maybe.

ssvs04 wrote:

Were just a little website. They will go after the big boys first then this site. So the following year maybe.

Lol ya all the big names first.

I think we need to separate technical standards & details from content.

Content should not be regulated, aside from that which is required to combat malware, spam, kiddie porn & the like.

However, technical standards & details are a different matter. The big carriers and ISP's have already demonstrated that they are untrustworthy to regulate themselves. Most ISP's are modifying one of the technical cornerstones of the Internet, the DNS system, in order to generate revenue. Some of them use otherwise useless installation CD's to install toolbars on new customers machines, as well as set their browser homepages to the ISP's site, again in the name of extra revenue.

If you really want a bad nights' sleep, look up "Deep Packet Inspection", and think of what could be done with that. There's been loose talk of modifying content of web pages the customer is viewing in order to insert advertising.

And then there's the throttling question. Should a carrier give preferential treatment to traffic destined for Fred's web site as opposed to Barney's site because Fred paid a little premium to the backbone carriers?

No, I'm sorry. The carriers have already been given a chance on the tech side of things, and they've proven that regulation is required.

Annoyed wrote:

I think we need to separate technical standards & details from content.

Content should not be regulated, aside from that which is required to combat malware, spam, kiddie porn & the like.

However, technical standards & details are a different matter. The big carriers and ISP's have already demonstrated that they are untrustworthy to regulate themselves. Most ISP's are modifying one of the technical cornerstones of the Internet, the DNS system, in order to generate revenue. Some of them use otherwise useless installation CD's to install toolbars on new customers machines, as well as set their browser homepages to the ISP's site, again in the name of extra revenue.

If you really want a bad nights' sleep, look up "Deep Packet Inspection", and think of what could be done with that. There's been loose talk of modifying content of web pages the customer is viewing in order to insert advertising.

And then there's the throttling question. Should a carrier give preferential treatment to traffic destined for Fred's web site as opposed to Barney's site because Fred paid a little premium to the backbone carriers?

No, I'm sorry. The carriers have already been given a chance on the tech side of things, and they've proven that regulation is required.

So your saying they are about the technical part not the content part? I understand you post this is true if they carriers are doing and all evidence points that way they why not. Take my carrier a small carrier we not near a major hub so our prices are higher and our speeds are way slower. Even though our carrier is trying to fix that they have run into problems.

The entire "net neutrality" discussion started a number of years ago was originally just about technical issues; should all traffic be treated equally & so forth. The political content side of it is fairly new as the govt. is now seeing an opportunity to establish precedent. I don't care if a govt. is right, center or left, they are all going to loathe something like the 'net which gives the citizenry an unfettered flow of information that they can't control.