TV comedian John Oliver has called for an online protest today, ostensibly calling in support of an “open and fair” internet. And what is the prescription for which he is calling to ensure such openness and fairness? Turning the reins over to the government of course.
You see, Mr. Oliver’s protest is spurred by new FCC Chairman Ajit Pai’s laudable decision to return internet regulation to Title I of the Communications Act, where it had resided since its inception. He and his followers long for a return to the heavy-handed regulation of the net brought about in 2015 by President Obama’s FCC Chairman Tom Wheeler. Wheeler, you recall, placed the Internet under Title II, regulating it as a public utility. The proffered reason for wrapping the governments fist around an internet that seemed to do just fine without it was to effect “net neutrality”, i.e. proactively preventing Internet Service Providers from slowing down, blocking or otherwise restricting or playing favorites with certain websites. The argument goes that an ISP could, for instance, give preferential treatment to a particular website over a competing one, based on how much the favored site pays the ISP; or that an ISP could restrict particular sites based on content they don’t like.
Far better for the government to have that authority.
This is as classic a case of a solution-in-search-of-a-problem as there has ever been. Title II is a depression-era relic that was conceived in the 1930’s in response to the telephone monopoly of the day. No such monopoly exists within the ISP world; neither has any problem metastasized within the industry of ISP’s deliberately blocking, slowing, restricting or favoring particular websites in any underhanded or untoward way – certainly not to any extent that would suggest a summoning of government corrective force was in order. Furthermore, should any ISP pursue such a course, mechanisms remain in place under Title I for the aggrieved party to seek redress. In other words, if an ISP decides that it wishes to contravene the principle of net neutrality, then the regulatory approach taken before Wheeler’s move, and reinstated by Pai, would not allow them to get away with it – though one struggles to be convinced that the market would not adequately punish such a wrong doer.
What Title II does is punish ISP’s in advance of any potential wrongdoing. The result is, of course, a chokehold on innovation, growth, and entrepreneurship, and, at least as importantly, a brake on the expansion of broadband services, the infrastructure for which is provided by the various ISP’s. This is a critical issue for those living in more rural parts of the nation, western Colorado being a prime example. Many discussions are being held at various levels of government concerning the expansion of broadband into these more remote areas, discussions which Title II regulation make virtually moot.
The question now becomes, who is in favor of increased government control of the internet? A cursory examination of the organizations participating in the online protest against Mr. Pai reveals a predictable who’s who of reliably leftist associations, for whom any retreat of the state is ideological heresy. And of course, forefront among the protestors is the online porn industry, for whom any hint, suggestion, or whisper of restriction of access to sexually explicit material is as harmful to the future of the republic and civilization as praying in schools.
As for the others, could it be simple rent seeking? Amazon, Netflix, Facebook and the rest have already made their technological and intellectual innovations, taking advantage of the light regulatory approach in existence before 2015. Having Uncle Sam serve to limit their competition from upstarts must be an almost irresistible temptation.
The bottom line is that the internet is not a public utility, and ought not be controlled like one; and the hypothetical risk of net neutrality breaches does not justify the economic (and potential social or political) harm that such draconian federal expansion creates. The corollary is that legislation (rumored to be in the works) is now needed to prevent future administrations from playing table tennis with the internet, and to cement its regulation in Title I where it belongs. With rural broadband and high-tech being such crucial issues for Colorado, this is something that Senator Gardner and the state’s congressional delegation should quickly get behind.
So as you take in the various online messages of outrage that Facebook, Google, et al will bombard us all with today, reflect on how many of them would be around if what they cheer for had happened a decade or so earlier. Then send Chairman Pai a thank you note on their behalf.