On Wednesday, the Federal Communications Commission released its draft Restoring Internet Freedom Order, detailing the agency’s plans to restore the light-touch regulatory framework that enabled vast Internet innovation and economic growth for approximately two decades.
While some FCC items primarily concern policy wonks, net neutrality is one of the most controversial matters before the commission, engendering fierce national debate and a record 22 million comments filed with the agency. Unfortunately, net neutrality-related conversations are often marred with inaccuracies.
The main inaccuracy is that the FCC is “killing” net neutrality — that now websites and streaming services will be discriminated against by internet service providers. Net neutrality generally describes the principle that consumers should benefit from an open Internet where bits are transmitted without discrimination, and without regard for their source, ownership, or destination. Every major stakeholder in the Internet freedom debate -- and that includes Republican and Democratic members of Congress, FCC commissioners, and ISPs -- supports enforceable net neutrality principles of no blocking, no throttling, no harmful prioritization, and transparency.
Additionally, the FCC order includes a requirement for ISPs to publicly disclose their neutrality practices and restores the Federal Trade Commission as the “cop on the beat” empowered to enforce these commitments.
Second, it is incorrect to say that the FCC is unraveling a long-established and effective Internet regulatory scheme. The agency is merely returning America’s internet regulatory approach to the light-touch framework implemented by a then-bipartisan Congress and Democratic administration more than two decades ago, after a brief Obama era diversion.
The Telecommunications Act of 1996 established the policy of the US “to preserve the vibrant and competitive free market that presently exists for the Internet … unfettered by Federal or State regulation.” However, after more than 20 years of unparalleled Internet-related innovation, in a sudden reversal, the then-Democratic-led FCC adopted heavy-handed utility-style regulation of ISPs. These burdensome regulations have needlessly stifled innovation and deterred investment.
Public utility-style regulation of the Internet is unnecessary and it has threatened jobs, investment, and innovation. USTelecom’s annual broadband investment report found that from 1996 through 2016, the broadband industry made capital investments totaling approximately $1.6 trillion.
The report also confirmed that investment in broadband networks has declined in each of the two years since Title II was imposed on the internet. The Phoenix Center found that the threat of overbearing public utility regulations itself has caused $150-$200 billion less investment than would otherwise have occurred over the past five years. Moreover, the decline in broadband investment is consistent with the predictions articulated in 2015 by now White House chief economist Kevin Hassett and President Bill Clinton’s former advisor Robert Shapiro.
Additionally, characterizing the net neutrality debate as a fight between big Internet providers versus consumers, smaller tech companies, entrepreneurs, and other public interest advocates is an inappropriate oversimplification. Both Republicans and Democrats have opposed utility regulation for the Internet. Major labor unions, more than 40 civil rights organizations, and dozens of manufacturers, tech companies, and tech leaders have spoken out against utility rules, arguing that such rules would hurt investment and jobs and that there are more appropriate ways to protect Internet freedom. Moreover, dozens of small and local broadband providers, small wireless providers, and non-profit municipal providers have also warned about the potential harms of regulating the internet like a public utility with ancient rules intended for landline telephones.
Perhaps most nonsensical is the claim that the FCC is trying to hide his nefarious plans to end net neutrality by releasing its order before the Thanksgiving holiday. Chairman Ajit Pai has launched unprecedented transparency reforms at the FCC, including a commitment to release the full text of all meeting items three weeks before open meetings.
Releasing the order on Nov. 22 provides ample time for public review prior to the opening meeting and vote on Dec. 14. In contrast, the controversial 2015 Open Internet Order was approved by a party-line vote, and the text was not made public until two weeks after the vote had already taken place.
When you look beyond the buzzwords and talking points, a clearer picture emerges of what the FCC is doing. It won't end net neutrality, but it will foster needed innovation and investment.
Alison Cheperdak is a third-year law student at The George Washington University Law School and co-president of the GW Law Federalist Society.
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