On the heels of more than 1.1 million Americans recently submitting comments to the Federal Communications Commission on internet openness, the FCC has announced that it will hold a series of “open internet roundtable discussions” with the aim of clarifying to what extent communications law should be reinterpreted. Central to that proceeding is “net neutrality,” a catch-all term for severe regulation of broadband providers and internet companies. This notion that the FCC should reinterpret the law and, for the first time ever, “reclassify” broadband as a public utility is perilous.
Providing the internet is nothing like supplying water or electricity, of course. Broadband carries speech, information and entertainment, and there should be an impermeable wall of separation between regulators and the internet.
Leaders of the net-neutrality movement, however, are struggling mightily to tear down that wall. Underlying talk of the need for more broadband competition is a motivation to rein in technology companies. Leading advocates know that classifying broadband like a utility will begin the process of regulating an online world they consider too unruly, too uninformed and too “undemocratic.”
There’s a children’s folk tale of a gingerbread man who once came to life and escaped the home of the baker. A fox offered to ferry the gingerbread man across the nearby river to safety, and at the gingerbread man’s insistence, the fox promised not to eat him. While swimming, the fox feigned indifference to the gingerbread man at first, but upon approaching the opposite shore, the fox began bargaining with the gingerbread man. Having no options, the gingerbread man permits the fox to nibble on his foot, then his leg. Upon reaching the shore, the progressive bargaining results in only the satisfied fox emerging from the water.
This fable is not unlike the current net-neutrality imbroglio. Reclassifying broadband as a utility would subject internet companies to regulations once intended for the 1930s telephone monopoly. Like the fox in the tale, advocates promise they will not do — after reclassification — what everyone knows they are tempted to do. Reclassification comes with regulations so onerous and so inappropriate for the internet that moderate net-neutrality supporters agree the FCC will need to repeal some of the mandates that automatically apply when reclassifying a service as a utility.
Like the gingerbread man, unfortunately, moderate net-neutrality supporters and the FCC may fall for the ruse. When those million commenters lose interest in net neutrality and return to their normal lives, the aggressive media activists and scholars will remain, pressuring the FCC to do more. It’s already apparent that the savviest advocates have larger designs, beyond reclassification, for regulating the internet according to “the public interest.”
Legal and social-science scholars have schemed for years in academic journals about making online services — including Google Search, Facebook, Twitter, Myspace and YouTube — public utilities. The boldest among them propose outright nationalization and public ownership of popular sites.
Some clamor to place regulatory burdens on social networks and search engines to protect the public against “digital gerrymandering” and the potential for tech companies to influence political behavior. They speak of imposing duties like “audience protection” on tech companies, likening them to broadcast TV stations that must comply with reams of regulations and prove they are acting in “the public interest” to stay in operation.
Professor Tim Wu, coiner of “net neutrality,” likewise recently told members of Congress at a net-neutrality hearing that FCC oversight of the internet should entail “not merely competition policy, but also media policy, social policy” and “oversight of the political process.”
This sort of talk is a dog whistle for like-minded activists and leaders of the fight to regulate internet companies who favor government oversight of the media. With the shrinking of broadcast TV and radio audiences, advocates are turning their attention to the internet. In the traditional media-and-communications landscape, these advocates favor mandated and subsidized “public-minded” programming, forced sales of assets to competitors, government price controls of services, and the odious Fairness Doctrine — a repealed FCC requirement to explore both sides of controversial subjects and penalties if the Commission thought news coverage was “unbalanced.”
Convincing the FCC to reinterpret the law will not get them all of the way, but it becomes far easier to chill speech and justify damaging interventions on a public utility. It is troubling that the FCC left the door open to this overreach. Utility regulation was never envisioned by Congress and should be taken off the table as inappropriate for the dynamic, open internet.