Wednesday, January 20, 2010

The Massachusetts Vote and Internet Regulation

In my recent essay opposing net neutrality regulation, entitled "Overregulating the Internet," which ran in the National Review and also on, I began this way:

"While health-care reform may be the foremost example of President Obama's overreaching domestic-policy agenda, communications policy deserves attention as well. In October, the Obama administration's Federal Communications Commission unleashed a proposal to regulate a large swath of the Internet under a "net neutrality" regime. If adopted, this policy would likely discourage investment and innovation in broadband Internet networks, a particularly unwelcome development with the nation just emerging from a severe economic slump."

And ended this way:

"The Obama administration's proposals for addressing health care are much too interventionist for my taste. But at least there is widespread agreement that in health care, there are market failures that ought to be addressed in one way or another. Not so with respect to the Internet marketplace. Rather than jeopardizing continued progress, the FCC should jettison its proposal to impose new Internet regulation. It should concentrate instead on producing a plan that will help bring broadband to the remaining 5 percent of American households that are unserved."

In between the beginning and the end, I hope I explained with some persuasiveness why the FCC, in the absence of any demonstrated market failure or consumer abuse, ought not to move forward with its proposal to adopt net neutrality regulation.

I do not want to suggest -– and I am not suggesting -- that FCC decisions should be dictated, or even overly influenced, by messages sent by the Massachusetts electorate regarding concerns about the Obama Administration's health care reform proposals. But I do want to suggest that when, back in a September 21 blog post, I called Chairman Julius Genachowski's proposal for new Internet regulation "an immodest proposal," I was expressing some of the same concern about regulatory overreaching and a certain bureaucratic immodesty that a large body of Americans obviously now feel regarding the pending health care reform proposals. Shortly after my September 21 blog post, in a September 28 editorial entitled "The FCC's Heavy Hand," the Washington Post agreed with me that the FCC's net neutrality regulatory proposal is "immodest." The editorial's subtitle perfectly captured the piece's sentiment: "Federal regulators should not be telling Internet service providers how to run their businesses."

On January 14, FSF submitted lengthy comments to the FCC urging the agency to jettison its proposals for new Internet regulation. On the other hand, the comments supported the notion of adoption of a transparency and disclosure rule, if reasonably drawn. This would be an appropriately modest way of proceeding at this point that would accommodate the agency's desire to act, while doing so in a constructive way that facilitates consumer choice.

A final note on net neutrality: For some time (going back to 2006 here, and especially in this 2007 law review article) I have argued that net neutrality regulation likely would violate the First Amendment. I was gratified to see that eminent constitutional lawyers Laurence Tribe and Thomas Goldstein have raised essentially the same First Amendment free speech concerns in a paper attached to the comments submitted by Time Warner Cable in the net neutrality proceeding. These two have a pretty good track record before the Supreme Court when it comes to constitutional law questions, so I commend their analysis to you. While not heretofore at the forefront of the concerns expressed regarding the FCC's proposal, I submit that, at least in part, some of the palpable unease concerning the FCC's proposed course is attributable to a sense – even amongst those much less schooled in constitutional law that Messrs. Tribe and Goldstein – that net neutrality regulation compromises fundamental free speech rights.

Now, a really final note: If you haven't already registered for the Free State Foundation's January 29 Annual Winter Telecom Policy Conference, you may want to do so now, as spaces are filling up fast. The conference agenda, which will have a significant focus on the FCC's broadband plan and proposed net neutrality regulation, is here. RSVP to Susan Reichbart at: