Letting DC Bureaucrats Micromanage the Internet Hurts Consumers and Threatens Freedom
Six years ago, when the FCC wisely ended its brief dalliance with regulating the internet under utility-style “common carrier” laws, every progressive in Washington seemed to lose their minds in unison.
Bernie Sanders and CNN predicted “the end of the internet.” Chuck Schumer predicted broadband speeds would slow down to the point where streamed baseball games or Netflix movies would be unwatchable. Leftist activist groups predicted ISPs would immediately “kill off their competition,” while Wired predicted the similar demise of Silicon Valley’s startup ecosystem.
You’d think the embarrassment of having been proven so spectacularly, completely, and unambiguously wrong in the ensuing six years might counsel at least a modicum of humility as the FCC prepares to once again take up the left’s sacred cause of net neutrality. Alas, the torrent of misinformation and goalpost-moving out of FCC headquarters suggests not.
Last week, FCC Chair Jessica Rosenworcel put out a “fact sheet” purporting to outline how her latest net neutrality push would “protect consumers and online freedom of speech.” Among its most obvious and brazen falsehoods was the claim that the Commission’s proposal, which would reclassify broadband as a common carrier under Title II of the Communications Act, is simply going back to how the FCC treated internet service providers consistently from 2005 to 2018.
Let’s not mince words: That’s complete nonsense.
The bipartisan consensus for lightly regulating high-speed broadband dates back to Bill Clinton’s 1996 Telecom Act, which created a new framework for Title I “Information Services” as a modern alternative to sclerotic, New Deal-era Title II rules. The FCC officially confirmed in 2002 that cable broadband service belonged under Title I, and the Supreme Court upheld that decision in 2005.
This bipartisan preference for a light regulatory touch proved prescient: Freed from the threat of price and other heavy handed regulations, a tidal wave of private investment – more than $2 trillion since 1996 – built out fast, reliable, high-speed networks. Today, US networks are faster and more widely deployed than those in more heavily regulated Europe.
Everything was sailing along smoothly until the Obama administration, reeling after Dems’ abysmal 2014 midterm shellacking, caved to leftist professional activists and endorsed the previously fringe idea that high-speed internet services would be best regulated as common carriers like a 1930s telephone monopoly. Predictably, the Commission’s resulting reclassification of broadband to Title II caused a slowdown in private investment from 2015 until 2017, when Chairman Ajit Pai had the good sense to restore the longstanding Title I framework.
Then, as now, FCC Democrats sold their plan by trying to conflate “net neutrality” (the popular, anodyne idea that internet providers shouldn’t block, censor, or throttle competitors’ traffic) with “Title II” (an ancient regulatory framework that gives the FCC authority to micromanage almost every aspect of the broadband marketplace). Chair Rosenworcel is now repeating this bait-and-switch, citing as support for her proposal the fact that “upwards of 80%” of Americans want to be able “to access all lawful content on the internet” without their ISP blocking or manipulating traffic.
Guess what? Consumers already do so today even without Title II. Net neutrality is an issue that time has passed by.
Every major broadband provider has made public commitments to uphold an open internet, and Chairman Pai’s 2017 Restoring Internet Freedom Order empowers the Federal Trade Commission (FTC) to police the marketplace for abuses. Six years in, even Joe Biden’s rabidly anti-corporate FTC Chair, Lina Khan, hasn’t been able to find a single violation.
The 2017 order also empowers the FTC to hold ISPs accountable for upholding their privacy policies and commitments. But the FTC has no privacy jurisdiction over Title II common carriers, and Congress effectively barred the FCC from ever again reissuing broadband privacy rules similar to those lawmakers rejected in 2017. That means FCC’s new classification leaves broadband customers unprotected in a privacy “black hole” – undercutting Democrats’ claims of this rulemaking’s pro-consumer goals.
Anyone who’s been paying attention to the internet over the past few years understands full well that the real threat to consumer privacy and free speech comes from Big Tech platforms, not internet service providers. Tech giants like Google, Facebook, Amazon, Apple, and Cloudflare are the ones banning conservative apps, silencing open debate on everything from vaccine mandates to Hunter Biden’s laptop, and racking up billion-dollar fines for violating our privacy.
Yet the FCC’s proposal gives Big Tech a free pass. How exactly is that going to “protect consumers”?
Inventing pretend consumer harms and rewriting the history of broadband regulation, all to justify a massive expansion of the regulatory state, is a recipe for bad policymaking. The broadband is thriving – and delivering massive benefits for consumers – without Title II. The FCC should leave it alone.
Matthew Kandrach is president of Consumer Action for a Strong Economy, a free-market advocacy organization.
