Discussion: (1 comment)
Comments are closed.
A public policy blog from AEI
The latest on technology policy from AEI, published daily.
Democratic Federal Communications Commission (FCC) Commissioner Mignon Clyburn made a number of bold claims in a recent statement on net neutrality, but she made one point we can all agree with: On net neutrality, “The FCC does not have the final word. ‘We the People’ do.” Indeed, it would be a different world had the FCC respected the wishes of the people having spoken through Congress in 1996 that the internet should be free and unfettered from federal and state regulation. This blog reviews some specious claims made in the commissioner’s statement. For a review of the legal road ahead for net neutrality, see the recent blog from Dan Lyons.
To police broadband providers, is one authority better than four?
Clyburn claims that because of the Restoring Internet Freedom Order, broadband providers will be allowed to block and degrade lawful content, favor content of some companies over others, interfere with consumer and content provider communications, and engage in unreasonably interconnection practices. Before the 2015 FCC rules, harmful blocking and degrading of lawful content was always punishable under competition law, as was the harmful favoring of some content over others and harmful interconnection practices. Fortunately, the laws that deter anticompetitive behavior by broadband providers now apply once again.
For a commissioner who claims to support consumer protection, it is odd that she prefers a monopoly of enforcement by a single federal agency rather than the partnership of the FCC with the Federal Trade Commission (FTC), Department of Justice, and State Attorneys General, which was the status quo before 2015. Indeed the 2015 FCC rules not only deprived Americans of their online privacy protections, but also removed the ability of the FTC to police broadband providers — and the FTC had made some 500 prior cases on privacy and data security against broadband providers. Moreover, it eliminated the ability of America’s foremost authority for consumer protection to recover funds for consumers, a power that the FCC does not have.
Now that the 2015 rules have been repealed, more cops are on the beat, not just the FCC. But the notion that a special set of rules are needed for “neutrality” of broadband providers alone, while the rest of internet actors are held to competition standards, doesn’t stand up to scrutiny. As the internet experienced unprecedented growth and success through 2015, broadband providers were governed by competition law, not FCC rules. It can’t be that there’s some systematic problem with broadband providers blocking content while at the same time Americans enjoy more content per capita than any other nation on earth, a number that has been increasing annually.
Does increasing government authority improve consumer privacy?
Clyburn also claims that broadband providers are now allowed to interfere in the communications of consumers and content providers. This was not allowed before 2015 and is not allowed today. It is true, however, that the 2015 rules gave the FCC, an agency whose leaders are appointed by the same president who selects security and intelligence officials, untethered power to regulate the internet. Americans should be concerned about government interference in their communications, particularly after numerous federal surveillance scandals, and some measure of skepticism should be applied to any federal agency saying it needs to increase its oversight of networks for the protection of people. In any case, the 2015 FCC rules were not a viable means of consumer protection. Broadband providers could legally evade them simply by offering curated service, but the power of the FCC to tax and surveil networks are important elements of Title II.
Politics is the answer to all questions
Clyburn waxes a tale of doom because the rules she favored were reversed. But she fails to acknowledge the harms suffered for the two years under the 2015 rules, notably an increase in the digital divide because plans for networks were delayed or canceled in marginal locations with vulnerable people, the constituencies Clyburn claims to represent. Clyburn does not want people to suffer, so why she willingly supports a harmful policy can only be explained by politics. For Democrats, internet regulation through Title II has become an article of faith, regardless of the lack of empirical evidence to support the policy. The party platform promises to “oppose any effort by Republicans to roll back the historic net neutrality rules that the Federal Communications Commission enacted.” Essentially what this says is that the party supports the brute force of 3-2 politics over the compromise of bipartisan legislation.
Clyburn suggests that there is one definition of net neutrality and one means to secure it, Title II. This isn’t true: There is no agreed-upon definition of net neutrality, nor is it codified in US law. The countries with net neutrality rules overwhelmingly created them by making specific net neutrality provisions in legislation. Strangely, Clyburn supports an instrument that no other country uses, that of administrative fiat, a rather undemocratic way to make rules.
The only way to get lasting net neutrality is to enshrine it in law through the people’s representatives in Congress. This is what some 50 nations have done. In fact, Congressional Republicans have been attempting to make a net neutrality law for some four years, a bill with provisions that exceed those of countries that have had rules for almost a decade. But it turns out that when it comes to net neutrality, Democrats do not seem as interested in “We the People” as their statements claim.
Comments are closed.
1789 Massachusetts Avenue, NW, Washington, DC 20036
© 2018 American Enterprise Institute