OPINION:
When the Federal Communications Commission (FCC) announced it would begin proceedings to regulate the Internet, it repeatedly painted the proposal as a “consensus” and “bipartisan” approach. It was as if the Orwellian commission could deem exactly how stakeholders and the public should feel about their drive to regulate portions of the Internet ecosphere. This marketing job could not be further from the truth.
The commission’s latest plan to enact net neutrality is directly in line with its last proposal to regulate the management of Internet networks. The FCC suffered a setback after a U.S. court of appeals ruled it was attempting to “shatter” the bounds of its authority by trying to regulate with only tenuous jurisdiction. However, the commission did not look to alter its policy, only its strategy. The newest plan reflects that, by taking portions of a law designed to regulate 1930s monopoly phone carriers and applying them to modern broadband networks, all in the name of net neutrality. This means even more regulation - and opposition - than the first attempt would have brought. Here begins the FCC’s marketing campaign.
The commission says there is a “consensus that the Internet should remain unregulated.” That much is true; however, the FCC’s claim that its proposal is this consensus approach that “does not regulate the Internet” is patently false. To get here, the commission is turning its back on years of law and precedent to redefine the “Internet” as the content that is accessed and delivered, not the entire network itself.
The 1996 Telecommunications Act, at least four declaratory rulings by the FCC and the U.S. Supreme Court ruling in the Brand X case have all treated the access component as an integral part of the hitherto unregulated Internet. In fact, the 1996 act - the last major revision of telecommunications law - does not include the term “content” or anything close to it when defining the Internet. It does, however, define the Web as “data networks,” which is exactly what the FCC wants to regulate.
To the commission, consensus also doesn’t mean finding widespread agreement among interested parties. It means balancing the legal restraints and practicalities that bind it with the desires of far-left leaning organizations that have the ear of Chairman Julius Genachowski and have long aimed for comprehensive, heavy regulation of the Internet.
In truth, there is zero policy consensus on this regulatory power grab. Net Neutrality 2.0 does not address the initial opposition from free-market think tanks, businesses, minority groups, workers unions and others who argue that regulating networks - regardless of how it is implemented - would have a devastating impact on investment and expansion of broadband. Even worse, the FCC’s latest version is so much more overreaching that it has drawn equally scathing reactions and brought even less consensus to the conversation. Opponents can now only be thankful that the FCC has promised its new approach will limit the impact of highly contentious issues, such as government price-setting.
Consistent with this strategy of wrapping pleasant rhetoric around onerous actions, the commission and proponents of Internet regulation also claimed the plan is “bipartisan” and has the backing of Congress. The organization Free Press went so far as to say Congress had declared the FCC should “do whatever it takes” to enact net neutrality. Yet, on the day of the plan’s release, proponents only cited a letter from House and Senate Commerce Committee Chairmen Sen. John D. Rockefeller and Rep. Henry Waxman, an Op-Ed by Sen. Byron L. Dorgan and a couple of other lawmakers’ press releases.
In stark contrast, this week 74 House Democrats sent the commission a letter chiding them for pushing regulations that will “deter needed investment,” “jeopardize jobs,” and bypass congressional approval in the process. Thirty-seven Senate Republicans also sent a letter offering much sharper criticism and questioning the FCC’s legal authority.
In truth, the bipartisan approach has always been to keep all aspects of the Internet unregulated. The Clinton administration and former Democratic FCC Chairman Bill Kennard also determined that the entire Internet was an “information service” and thus should not be subject to such regulation.
In the meantime, Rep. Edward J. Markeys bill to enact net neutrality has only 24 co-sponsors, compared with the 49 co-sponsors of Rep. Marsha Blackburn and Sen. John McCains legislation that would prohibit the FCC from regulating the Internet in virtually any way. There is so little support for net neutrality in the Senate that no bill has yet to be introduced this year.
No matter how pleasant the FCC tries to paint its newest push for net neutrality, it is easy to see the commission’s true intent through thinly veiled words: They want to regulate the Internet.
Kelly William Cobb is executive director of Americans for Tax Reform’s Digital Liberty Project.
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