Politics & Policy

On Net Neutrality, Time to Regulate the Regulators

(Dreamstime)

The Federal Communications Commission’s decision to effectively convert broadband Internet providers into regulated utility companies, stifling both technological innovation and consumer choice, is the latest example of the footrace dynamic that will dominate national domestic politics from now until January 2016: The Obama administration — or one of its purportedly independent enablers in the FCC and other federal agencies — announces sweeping and unilateral regulatory change, and the Republican-controlled legislative branch hustles to outmaneuver it. Given the respective timelines involved in executive fiat and lawmaking, the administration will almost always have a head start — but that should not stop Congress from catching up as quickly as possible.

At issue here is the question of “net neutrality,” an increasingly elastic term describing how an Internet service provider (ISP) treats any given packet of data moving through its network. On one side of the ideological divide, partisans of “neutrality” insist that every packet be treated in precisely the same way as every other packet, that none be given priority. On the other side is reality, in which the bandwidth demands of sending an e-mail from a home computer are different from those of streaming live video to a wireless device. That Netflix, for example, should be permitted to pay an Internet service provider to fast-lane its videos is, for the ideological neutralists, the first step toward another one of those science-fiction corporate dystopias that the anti-capitalists keep promising us, in this case one in which every Internet service provider becomes a “walled garden” in which consumers are hostage to the self-interested caprices of their ISPs, and therefore customers of an ISP that has an arrangement with Facebook might be relegated to pokey service when trying to use Instagram — or be blocked entirely from accessing certain Facebook competitors.

Internet users will notice that that hasn’t happened, and hasn’t shown any likelihood of happening, despite the absence of FCC regulations forbidding it. Even in the settings that most resemble “walled gardens” — for example, in-flight Internet services that do allow providers to enjoy absolute monopoly, for the duration of the flight at least — the trend has been in the opposite direction: When consumers made it clear that they were annoyed by Gogo’s unwillingness to support YouTube and streaming-video services, new products (notably services provided by the airlines themselves) came into the market to meet consumers’ demand for being able to while away that ORD–JFK segment watching funny cat videos.

The FCC’s move, then, is a typical federal regulatory enterprise: a non-solution to a non-problem.

While mainly motivated by a naïve ideological enthusiasm, net-neutrality activists fear, not without some reason, that the dominant operating model for ISPs will be something like that of cable-television providers. (Indeed, many cable-television providers are ISPs.) Specifically, they fear that ISPs will come to resemble cable companies circa 2010. The irony there is that it is the Internet itself — without any enabling regulation from the FCC — that has provided the beginnings of a solution to the problem of the general awfulness of the American cable company, with gleeful “cord-cutters” replacing their cable services with AppleTV, Hulu, and the like.

Neutrality as an operating principle has largely prevailed among ISPs in the absence of a federal mandate largely because consumers like it that way. But consumers may not always like it that way: For example, those who want faster service for downloading movies at the moment are largely restricted to paying for faster service across the board rather than paying for faster service when they want faster service — imagine the FAA’s insisting that if customers want to fly first-class on one trip, they have to fly first-class all the time. The FCC’s new rules are not aimed at preserving the effective neutrality that prevails today — they are ideologically informed measures aimed at preventing innovations in the marketplace that consumers might prefer to the current model.

#page#To accomplish this, the FCC is reclassifying broadband providers as “telecommunication services” under Title II of the Communications Act . . . of 1934. The FCC’s recourse to a law passed during the administration of Franklin D. Roosevelt should give us all an idea about the sort of cutting-edge thinking that is at work here.

There is much that is unnecessary in these rules. For example, the regulation against blocking access to lawful websites addresses a situation that is largely unknown. (Some providers that serve customers of businesses open to the public do block pornographic sites, which does not seem unreasonable.) Likewise, the call for greater transparency in protocols speaks to a desirable end, though one that is hardly crying out for federal intervention.

On the other hand, the ban on creating “fast lanes” for services that would benefit from them forecloses what might be a fruitful avenue of innovation. More worrisome still is the vast, open-ended powers that federal regulators have granted themselves: The FCC has — with no congressional mandate — just given itself a mandate to forbid anything that it believes to be other than “reasonable,” or anything it judges will “harm consumers or edge providers.” (“Edge providers” essentially means those who create or distribute content.) And, of course, there is cronyism: As Philip Elmer-DeWitt of Fortune reports, Internet-based pay-television services of the sort being contemplated by Sony (and possibly by Apple) would be specifically exempt from the fast-lane rules.

As an Internet-based concern, National Review Online has a strong preference for an open, rambling, largely unregulated Internet. We believe that intense FCC oversight is as likely to undermine those freewheeling ways and “permissionless innovation” as to preserve them — look at any other industry in which the FCC stands athwart commerce. There are measures that can and should be taken to increase competition among ISPs, and, as Julian Sanchez of Cato points out, in the event of truly cumbrous and destructive collusions between ISPs and content providers, then the prudent response would be case-by-case intervention carried out by the Federal Trade Commission rather than preemptive blanket regulation by the FCC. It takes a certain kind of crackedness to believe that “free and open” and “under heavy federal regulation” are synonymous.

Congress has the authority to legally limit the FCC’s ambitions in this matter, and it should do so, even though such efforts would probably run into an Obama veto. That’s a fight worth having. It is high time to regulate the regulators and remind the bureaucrats who in this republic is in fact empowered to make law. Likewise, Jason Chaffetz’s initiation of an Oversight Committee investigation into whether the White House improperly colluded with the FCC in formulating these new rules is to be encouraged — if only for the potential amusement in learning whether improper collusion was instrumental in this crusade against improper collusion.

Far from being dysfunctional, the Internet is one of the critical aspects of life in these United States, one that is brilliantly functional and wonderfully innovative in no small part because of the laissez-faire approach that government has historically taken toward it. Why anybody would want to make it more like a utility company is a mystery — unless one appreciates that, for those suffering from a certain progressive inclination, federal regulation is thought to be desirable in and of itself, and that the freewheeling ways of the Internet are a standing rebuke to those who would regiment and regulate practically every aspect of life.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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