IN THE war over net neutrality, it’s clear where the country should end up. Americans should pay for the bandwidth they consume, and they should consume any legal content they want, without interference from the network operators that transport the packets of information into their homes. That’s not just the way to maintain the free flow of information and services on which the Internet thrives; it’s also the way to encourage service providers to improve their networks rather than just manage traffic on their existing wires.
But government efforts to create a policy environment in which that aim is achieved have been erratic and, lately, the subject of intense controversy. That has led the Federal Communications Commission toward approving a net-neutrality plan that carries some serious collateral risks. It would be better if Congress finally did its job and agreed on a legislated plan that avoids more bureaucratic wrangling.
The FCC has been trying to impose net-neutrality regulations for half a decade, only to be stymied by skeptical judges and counterproductive political pressures. The U.S. Court of Appeals for the District of Columbia Circuit slapped down the agency’s approach last year. At first, it appeared the FCC would redraft largely identical rules that judges might find legally acceptable. Then Chairman Tom Wheeler contemplated a “hybrid” compromise plan more to the liking of net-neutrality advocates. But after President Obama pressed him to go further, Mr. Wheeler proposed a more radical overhaul of broadband regulations.
Now Mr. Wheeler’s plan is to reclassify broadband providers as common carriers under Title II of the Communications Act — a legal designation that currently applies to firms such as old-school telephone companies. That would expose broadband providers to a new world of federal regulation. Under the plan, the agency would choose not to enforce many of the most onerous Title II regulations, such as forcing cable companies to let any would-be Internet service provider use the wires they installed to sell its own Internet-access service. But the industry worries that future FCC commissioners would expand their regulatory scope, given the opportunity.
But in some respects, reclassification would limit regulators as well as the cable companies. It’s very likely that the Federal Trade Commission would be unable to conduct investigations and enforce actions in the broadband business, as it has done on issues such as broadband “throttling” — limiting customers’ connections — and consumer privacy. Consumer advocates should be wary of forcing the FTC to surrender its authority.
For years, the FCC has attempted to use old law to regulate broadband. The best way out of this mess is to create new law. That would settle the jurisdictional question between the FCC and the FTC, and it would make net-neutrality rules legally unassailable. Sen. John Thune (R-S.D.) and Rep. Fred Upton (R-Mich.) have proposed a net-neutrality bill, but it has little chance of becoming law because it strips the FCC of some useful regulatory authorities. That shouldn’t be the end of the legislative discussion.
Read more about this topic: