The Politics of Regulating the Internet

Net neutrality will be back in the news again as the U.S. Senate currently is scheduled to debate Wednesday and vote Thursday on whether to overturn the FCC’s Open Internet order, which preemptively regulated the Internet ostensibly to prevent broadband discrimination against websites, despite the fact that there is virtually no evidence of any broadband discrimination problem to solve. Last spring the House voted 240-179 to overturn the FCC order. In the 2010 midterm elections, all 95 candidates that signed a pledge in support of net neutrality lost. Recently, Verizon and Metro PCS appealed the FCC order on the grounds the FCC does not have the statutory authority to regulate the Internet. They are likely to prevail, because the D.C. Appeals Court that is hearing the case ruled, in 2010 in an analogous case, that the FCC does not have unbounded authority to regulate broadband or the Internet. The bizarre politics of this issue revolve around proponents’ desperate attempts to represent the FCC’s net neutrality regulations as something that they are not. First, proponents falsely claim that the FCC is not regulating the Internet by defining “the Internet” differently than it is actually defined in law, by the Supreme Court or by the FCC previously. By any reasonable interpretation of the law, the FCC’s precedent, and the Supreme Court’s understanding, the FCC order regulates the Internet. Moreover, the D.C. Court of Appeals in Comcast vs. the FCC ruled that the FCC was indeed trying to regulate the Internet in their net neutrality enforcement action against Comcast, and that the FCC had no such statutory authority to regulate broadband or the Internet. Second, proponents falsely claim that the FCC Open Internet Order only maintains the status quo. Does anyone really believe that the FCC would write a 135 page order, that the order would be one of the most politically contentious FCC issues in memory, and that the House and Senate would bother to take the highly unusual action to vote on disapproving an FCC order – if the order only maintained the status quo? The political firestorm and polarization surrounding this issue make it obvious that the FCC order represents a radical shift from the status quo, current law and previous FCC precedent. Third, proponents claim that the order would create “certainty and predictability.” Does anyone really believe that imposing new controversial Internet regulations for the first time, that the D.C. Court of Appeals has already indicated the FCC does not have the statutory authority to do, and that has prompted a rare resolution of disapproval process involving votes in the House and Senate, somehow creates “certainty and predictability?” This current process is the penultimate in uncertainty and unpredictability. Fourth, proponents claim the FCC is only preserving the “Open Internet.” When the internationally accepted definition of an “open” market has always meant free trade without government regulation, what kind of tortured logic can assert that a previously-unregulated Internet market that is now regulated by the FCC for the first time, somehow preserves openness? Logically the FCC’s action took an open market and made it much less open by economically regulating it with bans of previously legal market behaviors and business models. In sum, the politics of regulating the Internet and net neutrality are based on misrepresentation and upside down language and justifications. Only in politics can some say up is down, on is off, and regulated is unregulated. If the consequences of these political shenanigans and misrepresentations were not so real, serious and destructive to Internet capitalism, they would be laughable.