Pushed by its new Republican chairman, Ajit Pai, who seems to have never met a regulation he didn't want to kill, the Federal Communications Commission has proposed repealing the tough net neutrality rules his predecessor, Democrat Tom Wheeler, adopted in 2015 and replacing them with … well, that part's not clear. One possibility Pai floated is to have the FCC punt oversight of broadband providers such as Comcast and AT&T to the Federal Trade Commission, which can do little more to first-time offenders than tell them they'll be punished if they transgress again.
Pai's retreat would be the fifth pivot by the commission since phone and cable TV companies introduced always-on, high-speed Internet connections in the late 1990s. The regulatory gyrations haven't damaged the open, innovative nature of the Internet, at least not yet. But the uncertainty isn't helpful, and it isn't likely to end if Pai gets his way. The next time a Democrat takes the White House, a new FCC chairman will almost certainly push more vigorous efforts to prevent Comcast, AT&T and company from putting their thumbs on the Internet scales.
The obvious answer — and it has been obvious for years — is for Congress to prohibit broadband providers from picking winners and losers online by monkeying with the data on their networks, and to give the commission clear authority to enforce that prohibition. But lawmakers have been unwilling to arbitrate the dispute between broadband providers, which have toyed with the idea of extracting tolls from websites and services to support new business models, and Internet-based companies, which don't want to face any new barriers to competing online.
The heat generated by Pai's proposal — the commission has received 20 million public comments thus far, albeit many of them form letters generated by advocacy groups — and by congressional Republicans' controversial move to repeal the FCC's broadband privacy rules in March, might finally get Congress moving. Leaders of the House Energy and Commerce Committee announced last month that they would hold a hearing in September on "ground rules for the Internet."
"With almost everyone in agreement about fundamental principles to prevent anti-competitive behavior such as throttling and blocking, I think we are closer than ever to achieving a lasting resolution," Chairman Greg Walden (R-Ore.) said in a statement.
As encouraging as that may sound, the initial witness list for the hearing betrays a dismaying ignorance about why net neutrality is an issue. The committee set the hearing up as something of a clash of titans, inviting the chief executives of the largest broadband providers and the biggest Internet companies, such as Google, Facebook and Netflix. The only thing missing was a steel cage.
The point of having net neutrality rules isn't to protect multibillion-dollar Internet companies. It's to give other companies a chance to join or topple them. The rapid pace of technological change makes even companies with enormous economies of scale vulnerable to disruption, especially when consumers can easily switch from one shiny online object to the next.
No question, Facebook and its ilk would prefer not to have to pay Comcast or Verizon for priority access to its customers if broadband providers were allowed to impose such fees. But if push came to shove, those are the companies that could and would pay. The start-up trying to be the next Facebook could not.
Curiously, Pai and other Republicans have voiced less concern about the prospects of these smaller online businesses — the ones likely to inject a crucial dose of innovation into the 21st century economy — than the ability of giant, consolidating broadband providers to invest in faster, more widely available services. Better broadband connections in rural America, poverty-stricken inner cities and other underserved areas is a most worthy goal. But those connections shouldn't come at the cost of net neutrality.
Leading broadband providers insist that they support an open, neutral Internet. The problem, they say, is the utility-style regulations the Wheeler-led FCC imposed to achieve that end. The Democrats on the commission voted to do so, however, because a federal appeals court said it was the only route to enforceable rules that would prohibit broadband providers from blocking or slowing connections to lawful sites and services, or to prioritize connections for a fee.
Pai's hands-off approach is the wrong answer. If Republican lawmakers don't like applying decades-old utility-style regulation to broadband providers, they need to work with Democrats to give the commission explicit new authority to protect the open Internet from interference. Otherwise, the fight over how to do that will be always-on too.
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