From the diaries…

The House and Senate held “Protecting the Internet” hearings this week on potential FCC regulation of broadband and the legislative proposal that Sen. John Thune (R-SD) and Rep. Fred Upton (R-MI) have offered.  (You can see more of what my colleagues and I have said on this topic at TechFreedom.org.)

We are now approximately 10 years into the “net neutrality” battle. Just at the moment where it seems like the two sides could be coming to some approximate agreement — namely, narrow FCC authority to prohibit potentially harmful behavior like “blocking” and “paid prioritization”, while limiting what a judge once described as an “unbridled, roving commission to go about doing good” — it looks like the Obama administration and FCC may be determined to drag the fight on for another decade by “reclassifying” broadband to be regulated under Title II (the old monopoly telephone regulations) of the Communications Act. 

This is foolish, but not surprising. As Neil Stevens said “If we give them a bill that does what they’ve asked for, and they stonewall anyway, what’s that say? It says their agenda was something else.”

The goal was never simply an “open internet”, which approximately everybody already supports.  The Thune-Upton legislation would protect an open internet without handing the FCC expansive new authority  but of course the regulatory activists have moved the goalposts from simply prohibiting “paid prioritization”. That was always just the opening bid to gain more political control over the communications system. 

To achieve the far more expansive goals, they want…

  • Title II, the regulations that covered monopoly telephone service, which even advocates will acknowledge is almost entirely mostly inappropriate for the Internet (and they swear they will forbear on most of it…or some of it…eventually), and…
  • Section 706, which the FCC has interpreted as virtually unbounded authority to pass regulations that “encourage the deployment [of] advanced telecommunications capability…”

Where does that authority end? The FCC isn’t saying.  I am reminded of a scene from The Jerk, which I will modify here for relevance….

Well we’re gonna regulate broadband! And we don’t need to regulate the Internet. We don’t need to regulate wireless. We don’t need anything….except banning paid prioritization for Internet access service.

And that’s the only thing we need. We don’t need to regulate the Internet. Just simple rules for Internet access service. And maybe Interconnection. Broadband internet access service and interconnection for access providers. That’s all we need! And maybe wireless. The broadband access, the interconnection and the wireless access. And peering. That’s all we need! And specialized services. 

The broadband access, the interconnection and the wireless access, the peering and the specialized services. That’s all we’re going to regulate! And maybe extend some of these rules to device makers. But that’s ALL. We don’t need to regulate anything else!  Unless another FCC decides it encourages the deployment of advanced communications services. That. That we will need to regulate. But that’s all we need! 

The road to regulatory mission creep is paved with good intentions….and vague statutory authority. 

No doubt there are many who would be glad to see this fight drag on for the next decade, especially if they can extract more competitive advantages or regulatory control. But if the issue is to be resolved any time soon, then the only path forward is Congressional action. 

However, if the FCC proceeds, both reclassifying broadband under Title II and maintaining its expansive Section 706 authority, then defenders of the open internet — and the tech industry — had better start worrying just how much further the regulatory mission will creep.