Time for the FCC to stop regulating the net like it's 1934
© Greg Nash
"I'm into discipline 
Got a Bible in my hand and a beard on my chin 
But if I finish all of my chores and you finish thine 
Then tonight we're gonna party like it's 1699.”

This stanza from Weird Al Yankovic’s “Amish Paradise” is particularly relevant to the so-called net neutrality debate as both the song and the laws on which net neutrality are based look back to bygone eras present in this modern age. In Weird Al’s case, he references a lifestyle that shuns modern technologies, choosing to live a simpler life.

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The net neutrality debate started in late 2014 as the Federal Communications Commission, at the direction of the White House, with the idea that a regulatory scheme falling under Title II of the Communications Act be applied to the Internet. When the FCC passed net neutrality rules in February 2015 through the “Open Internet Order,” it subjected the Internet to laws passed in the mid-1930s which were designed to regulate telephone monopoly.

 

Essentially, the order subjected companies delivering the Internet to a regulatory scheme that, if alive, would qualify for Social Security benefits. And that includes a 1996 update to the law, which pretty much acted like a double-knee replacement surgery—the 1996 update recognized the Internet and breathed new life into the law for a time.

Before proceeding, there are a couple basic principles people need to understand. First, everyone supports an open Internet regardless of political affiliation. Everyone should have the ability to access the Internet, engage in lawful activity on the Internet, use programs and obtain service plan information. Second, no one on the Right or Left wants to see consumers harmed through their use of the Internet. The real debate involves how an open Internet is best preserved and how consumers are best protected.

On the Right, advocates argue for reasonable regulations, enforcement actions based on actual consumer harms and working market forces. Advocates believe the Internet is a great place. The Internet is the new town hall where people discuss ideas. It is a new marketplace where people buy and sell and so on.

On the Left, people argue the government has a responsibility to protect consumers from experiencing any type of harm imaginable, regardless of evidence. Some of these averred harms include ISPs charging too much for services, providing preferred access to certain companies such as Netflix or blocking certain websites. 

The Open Internet Order represents the government-centric solution. The government-centric solution permits technocrats living in Washington, D.C. who believe the Internet is a type of monopoly to control the proverbial levers and switches of the Internet. If the Internet is a monopoly, it needs to be regulated in the same way the Bell telephone system was regulated. Monopoly regulations, whether applied to the companies delivering the Internet or old Ma Bell means the FCC can micromanage the Internet, including determining the rates consumers must pay, the speeds consumers can access and much more.

In addition to the problems of applying an archaic paradigm to a modern technology, legislators in the 1930s could not have anticipated the rise of computers or the Internet. That being said, the laws they passed relating to communications services could not have adequately protected consumers of the modern technology. In other words, when the government believes laws passed in an era when the most popular cars included the Packard and air transportation was a privilege only the extremely wealthy could afford can properly regulate modern technologies, it cannot properly protect consumers.

The FCC should not regulate a modern technology “like it’s 1934.” Communications laws need to be updated so they look toward the future and do not trap modern technologies in regulatory schemes of a bygone era.

Updates to the law are Congress’ responsibility, not the FCC's responsibility. Congress needs to step up. This country needs a discussion on how to best preserve an open Internet and protect consumers.

For that discussion to take place, the FCC needs to reverse the reclassification of the Internet as a 1930s telecommunications service. Once the anachronistic paradigm is removed, members of Congress and the public can engage in a meaningful dialogue about the future of communications law. This dialogue must include the proper role of the government, market forces and how to best protect the consumer while allowing people and ideas to flourish on the Internet.

Jonathon Paul Hauenschild, J.D., is the director of the American Legislative Exchange Council’s Task Force on Communications & Technology.


The views expressed by contributors are their own and are not the views of The Hill.