Lee in The Washington Examiner: Bringing freedom back to the Internet

February 25, 2016

A year ago today, five unelected bureaucrats at the Federal Communications Commission (FCC) decided to exploit an 80-year-old law meant for regulating radio, telephone, and telegraph operations, in order to begin regulating the Internet.

As unprecedented a step as this was, it was not the first time FCC bureaucrats attempted a takeover of the Internet.

More than five years ago, the FCC released its Open Internet Order of 2010, a set of new regulations designed to appease so-called "net neutrality" activists who had been fighting for more government control over the Internet.

But Americans fought back — and they won. The Internet service providers challenged the new FCC regulations in federal court, arguing that Title I of the Communications Act of 1934 did not give the FCC the authority to implement net neutrality regulations. And in 2014, the United States Court of Appeals for the D.C. Circuit issued a decision holding that the FCC had exceeded its authority to regulate Internet providers as "information services" under Title I.

Undeterred, and forever striving to expand their powers, the bureaucrats at the FCC did not give up. The next year they released their Open Internet Order of 2015, this time reclassifying Internet service providers as common carrier utilities, which is what AT&T was in 1934 when the federal Communications Act was first passed.

Back in the 1930s, it may have made sense for the FCC to protect consumers from a single company with monopoly control over an emerging communications technology. But we live in the 21 st Century, and the Internet today is categorically different from telecommunications technology from the Great Depression era. Today, with numerous providers fighting over multiple platforms to offer consumers the best experience, the FCC's anachronistic approach will only stifle Internet-drive innovation, which will only hurt the consumers it claims to protect.

Some Internet traffic is very time-sensitive – think of Skyping your family or streaming a movie – while other traffic is not, like sending emails or general web browsing. This technical distinction points to the danger of a government regulatory regime that treats these different types of data as the same.

And make no mistake: the economic burden of these regulations will fall squarely on the backs of the consumers the FCC purports to help. Already, we have seen innovative programs like T-Mobile's "Binge-On" targeted by net-neutrality advocates for government regulation, even though they give consumers increased access to popular content at no additional cost.

Some proponents of net neutrality argue that Internet Service Providers (ISPs) engage in predatory practices in the future. The threat of anticompetitive behavior should always be taken seriously. But it makes no sense for a five-person panel of presidential appointees to write a sweeping law aimed at solving a problem that might someday exist. There are more effective, more democratic, and less intrusive ways to address anticompetitive behavior, including existing antitrust and consumer-protection laws.

Others believe the FCC's regulations are the only way to mitigate potential freedom of speech violations. This concern should be taken seriously too. Since its explosion in the 1990's, the commercialized Internet has become the greatest marketplace of ideas and information in human history, and we should work to preserve its organic, multifarious nature. But if the availability of diverse content is what makes Internet access so valuable, what incentives do ISPs have to suppress free speech?

The reality is that the Internet has already taught us that the best way to protect free speech online is to keep the Internet open and free from cronyist bureaucratic control, allowing permissionless innovation to produce new and dynamic technologies that empower and connect people. That's why I have introduced, along with several of my colleagues, the Restoring Internet Freedom Act. This bill will repeal the FCC's net neutrality rules and set the statge for more comprehensive reforms of federal technology policy.

Instead of expanding the scope of an 80-year-old law beyond recognition, we should trust the good judgment and common sense of the American people to decide what works and what doesn't. This has been our nation's way since its inception: the belief that ordinary men and women – not distant, unelected bureaucrats – make their own decisions. The Restoring Internet Freedom Act is an important step in that direction.