The date for the FCC’s consideration of the draft Restoring Internet Freedom order is fast
approaching. It is fair say that there has not been a more momentous vote since
the Wheeler Commission voted to impose the Internet regulations that are now
proposed to be undone.
While there are obviously important underlying legal and
policy issues, at bottom, what is at stake can be simply stated: Should
broadband Internet access service be regulated like a public utility?
Based on my experience in the communications law and policy
field going back forty years, I agree completely with former Clinton
Administration FCC Chairman Bill Kennard when he said, in 1999, that it would
be a mistake to “go to the telephone world” and “pick up this whole morass of
regulation” and dump it on broadband. That is essentially what the 2015 Open Internet Order did. And that is
what the leading advocates of new Internet regulation asked the FCC to do.
Susan Crawford, one of the leading pro-regulatory advocates,
argued explicitly in her book Captive
Audience that, for broadband, “America needs to move to a utility model.”
No bones about it. Ms. Crawford stated, “like water and electricity,” broadband
is a natural monopoly that must be subject to utility regulation.
As I and other Free State Foundation scholars have explained
for many years, broadband is not a natural monopoly. Absent a demonstrable market
failure and evidence of consumer harm, it should not be regulated like a public
utility.
I was very pleased that on December 4, the Free State
Foundation published “Reactions to the FCC’s Restoring Internet Freedom Draft Order” from ten members of our Board of Academic
Advisors. These prominent scholars make a convincing case for changing course –
for reversing the 2015 order’s imposition of public utility regulation.
I urge you to read their
entire statements. But here I want to highlight a very brief excerpt from each one
that is useful in helping to appreciate what’s at stake – and that, hopefully, spurs
you to read them all.
BABETTE BOLIEK
The second serious problem created the 2015 Order was the
FCC’s creation of the Internet General Conduct Rule. By the FCC’s own edict,
the FCC can (i) articulate new, unpermitted business practices, (ii) judge when
these previously unarticulated violations of the rule have occurred and (iii)
punish violators. The FCC is lawmaker, judge, and executioner – a tri-partite
government buried deep in the bowels of the FCC.
TIMOTHY BRENNAN
The previous FCC should never have
gone down the 2015 OIO path. Simply, and with modesty, it should have proposed
that, because of the general importance of the Internet as a communications
medium, it would codify established industry practices regarding delivery of
standard quality content, and leave the rest to the market – including paid
prioritization to foster innovations requiring higher quality service.
MICHELLE CONNOLLY
The current FCC intends to reverse an order imposed in 2015. I do not see how anyone
can argue that the Internet, content, and services on the Internet, and freedom
of speech were not flourishing before 2015.
ROBERT CRANDALL
Supporters of the FCC’s decision to repeal Title II (“public
utility”) regulation of broadband carriers applaud the decision in large part
because they believe that such regulation suppresses capital investment. Recent
studies show a substantial slowdown in capital expenditures by broadband
carriers since 2014 when the FCC began considering some form of public-utility
regulation of broadband.
RICHARD EPSTEIN
All network industries are difficult to organize and
regulate. The Wheeler rules underestimated the complexity of the broadband
market that the Pai order fully acknowledges, Professor Wu’s overwrought
critique notwithstanding.
JUSTIN (GUS) HURWITZ
The new Order, however, is better – factually better,
legally better, and better reasoned – than the previous one. It is sufficient
on its own terms to survive judicial review – and it is more sufficient than
the previous Order to survive review on the terms the D.C. Circuit applied to
that Order.
DANIEL LYONS
I also applaud the Commission’s focus on transparency. For
competition to work, consumers must make informed choices between providers,
which means understanding what each provider offers. Through this order, the
FCC can improve the quality of broadband markets by assuring consumers get the
information they need to make an informed choice among providers.
JAMES PRIEGER
Those who foresee dire
consequences for the future of the American Internet from rolling back the 2015
Title II regulation ignore the great success and continued growth of the Internet
over the past two decades – growth that occurred (until 2015) in the absence of
net neutrality regulation. I look forward to the lighter-touch regulation of
ISPs to, as the draft order states, “advance our critical work to promote
broadband deployment in rural America and infrastructure investment throughout
the nation, brighten the future of innovation both within networks and at their
edge, and move closer to the goal of eliminating the digital divide.”
CHRISTOPHER WALKER
Last week Chairman Ajit Pai announced his intention to roll
back the FCC’s 2015 Open Internet Order.
I leave it to experts in the telecommunications field to debate the legal and
policy merits of the proposed order. As a scholar of administrative law,
however, I applaud Chairman Pai’s decision to make public the draft text of the
Restoring Internet Freedom Order in
advance of the FCC’s consideration at its next public meeting.
CHRISTOPHER YOO
The Federal Communications
Commission is poised to adopt the proposed order on Restoring Internet
Freedom. The network neutrality debate has always struck me as having a
backward-looking quality, calling for preservation of certain features that are
claimed to have been critical to the Internet’s past success. As the FCC’s
proposed order discusses at length, the record before the agency tells a
different story. The existing rules have deterred investment and innovation and
worsened the digital divide by making service in rural and low-income areas and
service by small ISPs more costly.
So, there is much at stake when
the Commission votes on December 14. Here, I’ll let Christopher Yoo have the
last word, not only because he fell last in alpha order, but because in this,
as in so much else, he is profoundly correct:
“Returning to the light-touch
policy that has served the Internet so well represents the best way to foster
innovation in a changing environment. If not, the U.S. risks remaining stuck on
the innovation-stifling path that has served other countries so poorly.”
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