Under the leadership of Ajit Pai, the Federal Communications Commission has, as expected, announced that it will repeal Obama-era regulations mandating “net neutrality,” a set of wide-ranging rules governing Internet services. The change is a welcome one, and, as has been common with the regulatory reforms of the Trump administration, there is a procedural piece and a policy piece, each worth considering on its own merits.
Procedurally, the case against the FCC’s net-neutrality rule is that it exceeds the agency’s statutory mandate. The FCC is not a free-range, independent regulatory paladin with an open-ended portfolio; it is a creature of statute, and its job is to enforce the law, mainly the Federal Communications Act, the 1934 law whose telephonic provisions were designed with the Bell telephony monopoly in mind, not the iPhone. (The basics of its telephone-related provisions were adopted from the 1910 Mann-Elkins Act, a Progressive-era assault on — here’s a golden oldie — “destructive competition.”) There is no title or provision in the Federal Communication Act that gives the agency a clear mandate to impose pricing and content-management rules on Internet providers, which is what net neutrality does.
Congress has considered the question of net neutrality, and Republicans even proposed a compromise on the subject in 2015. But Congress declined to act on the question. If Congress wants net neutrality, then Congress can pass a law and let the FCC enforce it. It isn’t up to the FCC to create sweeping new policy on its own. That kind of lawlessness ran rampant in the Obama administration, and the Trump administration is undertaking important work in undoing it, from the FCC to the EPA.
On to the substantive policy question. If Congress has seemed to be in no particular hurry to impose net neutrality, that may be because there isn’t any obvious need for it. The Internet thrived for decades with no net-neutrality rule and very light overall regulation, and the problems contemplated by net-neutrality advocates have not come to pass.
It isn’t that their concerns are entirely unreasonable. Consider the fast-lane/slow-lane problem. Without net neutrality, Internet providers can work out presumably profitable deals with bandwidth-hungry services such as Netflix or online gaming companies, allowing them to pay to prioritize their Internet traffic over less intensive users. The theory there is that a half-second stutter makes watching a streamed movie unbearable but doesn’t really have a meaningful effect on your email. All good and fine.
But it is, as net-neutrality advocates point out, possible that big-market incumbents could exploit their ability to pay for priority access in way that disadvantages smaller competitors; they could, in theory, even negotiate deals that excluded competitors from premium access entirely, consigning them to second-rate service. Lots of things could happen, but competition and the Internet’s ethic of openness has, so far, prevented that kind of abuse. The FCC is making a preemptive strike on a problem that does not exist and may never exist. Getting the FCC into the business of regulating Internet companies at this invasive a level in order to solve a hypothetical problem is a poor tradeoff.
The FCC is making a preemptive strike on a problem that does not exist and may never exist.
There are other dark whisperings. Absent net-neutrality rules, advocates say, Internet providers could entirely exclude marginalized groups, such as political and religious minorities, stifling their ability to use the Internet to communicate, organize, and bring their concerns to the wider public. That is of some concern to conservatives, who often have found their ideas and their advocates unwelcome on social-media services such as Facebook and Twitter, which have been far from even-handed in their editorial decisions, and might expect as much from Internet providers. As odious as the ideas and attitudes cultivated by neo-Nazi websites are, the decision by companies such as Network Solutions and GoDaddy to exclude them from the Internet entirely presents worrisome possibilities.
Again, the best and most immediate answer to that is robust competition and a multiplicity of providers — something heavy-handed regulation is more likely to hobble than to encourage. But if Congress wants to forge a compromise on the low-hanging fruit and forbid the outright blacklisting or strangling of would-be Internet communicators (as Republicans contemplated in 2015), then that seems reasonable. But Congress has made no such decision.
A roving FCC that is all over the place and an Internet that is under more stringent government control seems to us the precise opposite of how things should stand. We’d much prefer to see a freewheeling Internet, ugly as that can be at times, and an FCC that is narrowly constrained by the law. Pai, it should be noted, does not oppose net neutrality per se, but believes that the FCC does not have the authority to impose it on its own. Other, more enthusiastic net-neutrality advocates have come to the same conclusion: that this is a matter for Congress, which last revisited the question of Internet access in a meaningful way two years after the first commercial web browser hit the market. Governing 21st-century Internet commerce with the same policy assumptions President Taft brought to turn-of-the-century railroad regulation is not obviously the best way to proceed. For now, we are willing to let innovation and competition shape the business side of the Internet, inasmuch as there is no convincing and immediate rationale for more invasive federal intervention.