In an excellent editorial last week, the Washington Post argued that the FCC should not go forward with its proposal to classify broadband Internet service providers as common carriers subject to the same type of public utility-like regulatory regime that was applied to Ma Bell back when…back when there was a Ma Bell a quarter century ago. Instead, the Post called for Congress to establish "a clearly limited power to take action against anti-competitive violations, rather than encumbering this vital sector with detailed and prescriptive regulation, is the sensible approach."
Not surprisingly, now comes pro-regulation FCC Commissioner Michael Copps taking exception in a response published in today's Post. This is old ground. But two aspects of Mr. Copps' brief response are worthy of comment. He says the Verizon-Google proposal, which the Post commended as a basis for a potential legislative solution, would come "at the expense of the open Internet we now have."
Commissioner Copps regularly bemoans, as he does in his Post rebuttal, the action of the Bush Administration's FCC which adopted policies to ensure that Internet providers would be only lightly regulated, not subject to traditional public utility-like regulation normally reserved for monopolies. But he doesn't seem to recognize the fundamental contradiction between acknowledging the existence of the "open Internet we now have" and criticizing the lightly regulated environment that has allowed such open Internet to flourish. Instead, reflexively, Mr. Copps calls for more Internet regulation.
Now, Mr. Copps also repeats in his Post piece the line that this is not a debate "about regulating the Internet." To him, it is instead all about regulating "Internet service providers." Whoa! Bring in the Jesuits to resolve the metaphysical distinction between "regulating the Internet" and regulating the "Internet service providers." (Actually, it doesn't require bringing in the Jesuits to resolve this one. As I – and many others – have explained many times, it is wrong as a matter of law and policy to suggest that Internet service providers do not comprise an important component of "the Internet.")
There may be certain segments of our market economy where additional regulation and oversight may be justified, or even advisable. Think, perhaps, government inspection of egg production facilities, or mine safety, or oil rig safety. But, given that Commissioner Copps and other proponents of new Internet regulation acknowledge that we presently enjoy an open Internet, the case for new prescriptive government regulation in the dynamic and competitive Internet market segment – a segment in which there is presently no consumer harm - is extremely weak. As the Post put it, it simply doesn't make sense to risk "stifling innovation with unwieldy preemptive regulations."
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