There is no example in the history of the planet that compares with the juggernaut of information technology unleashed by the granting of Internet independence from government control on April 30, 1995. What followed was the stunning success of the thousand-fold expansion of new communication capacity and services.
The Federal Communications Commission would be hard-pressed to identify a similar regulatory success story over the same period. The disconnect from reality only possible inside the Washington beltway nonetheless leads the commission on a path to impose a failed regime of government industrial policy on the Internet.
On June 12, 2015, the Open Internet Order from the Federal Communications Commission will take effect, regulating the Internet in the same way that monopoly voice telephone service was first regulated in the 1930s. The utter incongruity of declaring Internet and telephone networks equivalent threatens the entire economy — not just the Internet service providers. The uniformly anti-innovation 80-year track record of Title II regulations threatens all uses of the Internet, from looking up information about how to grow organic tomato plants to the expanding uses of cloud services.
The certain threat of Title II regulation to entrepreneurial initiatives led me to file motions with the FCC and the Court of Appeals to stay the rules from being implemented today, June 12, and to convene a group of tech innovators to help ground the conversation in reality. Unfortunately, my requests fell on deaf ears. The FCC prefers to frame itself as in a fight against Internet Service providers, and would prefer to avoid inconvenient arguments that point out the collateral damage that its regulatory agenda will cause to the entire Internet value chain. This includes small businesses like mine, which cannot clearly operate with its unclear, broad-reaching definitions and ill-fitting rules designed for another industry in another era.
Having devoted my professional career to helping facilitate the transformation from traditional circuit switched services to Internet Protocol (“IP”) services — including current efforts to deploy new HD voice offerings — I have been involved in a number of industry firsts in IP communications. I know firsthand what regulatory morass can do to slow growth and innovation. It threatens the livelihood of similar entrepreneurs everywhere dependent on a nimble regulatory structure that doesn’t require a bevy of lawyers or any sort of permission to innovate. The ability to design, develop and implement services not directly subject to the forthcoming regulations — something essential in moving U.S. networks and technology platforms to the next generation — will be forever lost when the Order takes effect.
The Open Internet Order also invents artificial distinctions between content companies, Internet providers and end users for the purposes of regulation. History demonstrates that asserting artificial market distinctions for purposes of regulation always invites arbitrage and unintended consequences.
By letting the FCC regulate computer networks for the first time, the Open Internet Order ends the “permissionless innovation” that the FCC purports to protect. The Internet is not broken, but they intend to fix it, bringing uncertain benefits and certain unintended consequences.
Daniel Berninger is the founder of the Voice Communication Exchange Committee and convener of the Tech Innovators civic initiative, which includes, among others, Electronic Frontier Foundation co-founder John Perry Barlow and Dallas Mavericks owner Mark Cuban. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
