The controversy over Net Neutrality has given all sorts of people the opportunity to say how much they support an open Internet that promotes innovation, competition, free expression and infrastructure deployment. So do we still have anything to worry about? We sure do.
I have just finished reading the Federal Communications Commission’s Notice of Proposed Rulemaking (NPRM). The Commission is proposing regulations to replace Net Neutrality rules that were vacated by the D.C. Court of Appeals in January. I recommend reading it if you want to understand the FCC’s thinking. I don’t recommend it, however, if you want to stay sane. It shows that how we have arrived at having no Net Neutrality rules is very complicated and that any FCC decision will be equally complicated. This is exactly what we don’t need.
I used to teach telecommunications policy at the University of Wisconsin-Madison. I wrote a book on it. I’ve testified before Congress about it. I could get down to the details of the NPRM and explain, for example, why the Commission’s traditional definitions of competition do not apply to the new communications medium that a local Internet Service Provider has become. I could discuss why local ISPs are a lot like telecommunications common carriers but unlike them in important ways. I could make a pretty good case why the FCC’s proposal to allow ISPs to make deals with some information providers to provide them a preferred class of service would create economic incentives that will ultimately stifle free speech.
But, you know what? Working within the FCC’s procedures is like trying to untie the Gordian Knot. That’s the one that Alexander the Great cut with his sword.
Reading the NPRM makes it pretty clear that the FCC is seeking a complicated rationalization for a simple necessity: a statement of enforceable principles for maintaining an open Internet. They have to do this because of the byzantine history of their own operation, authority and decisions. Whatever comes out of it will be subject to more litigation at the hands of vested interests. The Communications Bar Association’s members will make more money. The carriers will have the staying power to play this game long after the activists have tired. So, ultimately, they win.
Take Net Neutrality to Congress!
Ironically, all this could be easily avoided. The FCC is a creature of Congress. This whole thing could be fixed with a short amendment to the Communications Act that specifically grants the FCC the authority to regulate the Internet the way it’s done successfully until the Court overturned the regulations. Too bad Congress is broken.
Or is it? Perhaps Net Neutrality is an issue that attracts support across the political spectrum, at least at the grass roots. Maybe the Tea Party doesn’t want to be shut out by YouTube. Perhaps industries are divided enough that the lobbying in Congress would be more diverse than what we usually see at the FCC. At the very least, I would enjoy getting every Senator and Representative on the record about where they stand on a specific, clear amendment to guarantee Net Neutrality.
People feel strongly about this issue, and it looks as if most people agree. Public opinion, however, is a blunt instrument, and people get tired. We shouldn’t risk exhaustion by getting caught in all these procedures. We need a simple, clear solution that we all can support and that puts the issue beyond the reach of industry lawyers and lobbyists in the future. And we need to get to work now.