FCC shows firsthand why net neutrality is a doomed proposition

Considering he ran what the media designated as the two most digitally savvy campaigns in political history, Barack Obama’s administration has been stunningly inept at using technology to achieve policy goals. The spectacular failures of the health insurance exchange websites almost singlehandedly turned the political climate against the White House, and now, as the Federal Communications Commission attempts to implement sweeping Internet regulations, it can’t even manage to keep its own website up and running.

After multiple failures in Congress and an earlier executive proposal that was struck down by the courts, the Obama administration is on the verge of finally implementing network neutrality regulations, a longtime liberal policy priority. The FCC--which had authored the net neutrality regulations that the courts had deemed unconstitutional--proposed a new net neutrality order in May, and opened a public comment period that was slated to close earlier this week. However, the FCC’s website was unable to handle the volume of public comments and crashed, forcing the commission to keep the commenting period open until it could repair its own faulty infrastructure.

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Ironically, the FCC is blaming bandwidth intensity for their website’s crash. As FCC press secretary Kim Hart said this week, “"Not surprisingly, we have seen an overwhelming surge in traffic on our website that is making it difficult for many people to file comments through our Electronic Comment Filing System.”

What is most surprising about the ordeal is that the FCC found the website crash "not surprising." Given the robust offering of cloud-based hosting services, designed to handle these exact type of needs, it begs the question of whether an agency so ignorant of the infrastructure to which it is proposing sweeping regulations should be doing so in the first place.

The FCC's proposal establishes a foot in the door for further sweeping regulation and government control of the Internet, and net neutrality's strongest proponents are pushing for policies that will make traffic surges and website crashes the new normal.

While the FCC is currently considering a watered down version, the ultimate goal of net neutrality is for federal regulators to force Internet service providers (ISPs) to treat all data equally, forbidding them from prioritizing high-demand content or charging large content providers for the disproportionate share of bandwidth they use. Of course, all data is not created equally, and stripping from their rights to differentiate between high-priority data (like Netflix) and low-priority data (like the still-functioning Dole 1996 campaign site). Internet service would become nothing more than another tightly-regulated public utility like local phone and water service, severely limiting ISPs’ capacity for innovation.

Furthermore, even this watered-down version of net neutrality opens the door for the FCC to further regulate the Internet, making it more difficult for ISPs to compete and innovate in a way that benefits consumers. As the government’s web of regulations grows larger, the quickest avenue to success will be to see that rival companies run afoul of the new rules. Internet companies could attempt to sic the FCC on one another and bury their rivals under regulatory lawsuits, bureaucratic investigations, and federal fines. This type of “competition” would benefit no one except trial lawyers, and the FCC’s pattern of regulatory enforcement has been troubling, punishing businesses who take competitive measures to advance in the marketplace.

Unfortunately, what was supposed to be the most tech-savvy administration of all time hasn’t lived up to its billing. When the government can’t even keep its own websites functioning, maybe it shouldn’t be given the power to regulate the Internet for the rest of us.

Telford is senior vice president of the Franklin Center for Government & Public Integrity.

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