The political system is not built for anything resembling a rational discussion of net neutrality.
One minute and 56 seconds: That’s the entire length of President Obama’s YouTube video explaining his preference for strong Federal Communications Commission action on net neutrality. Shorter still: Sen. Ted Cruz’s indignant response. The morning of the White House’s statement, the Texas senator declared that net neutrality “is Obamacare for the Internet,” adding that “the Internet should not operate at the speed of government.” Cruz expressed his frustration on Twitter. Of the 140 characters available, he used 107.
Nothing new, of course. Politicians specialize in cutting to the chase. But the process of simplifying can be taken to destructive lengths, and when the gap between the soundbite and the substance becomes too great, we risk losing more of the latter than we might like. That’s particularly true in the space where politics meets tech.
Consider net neutrality. It is the mother of wonky topics. For its advocates, net neutrality is the only thing standing between the open and free Internet of today and the bought-and-paid-for Internet of tomorrow. Without strong regulatory action, they argue, Internet service providers like Comcast and Time Warner will be able to rig the system to benefit their bottom line. If ISPs could charge more from players willing to pay for faster transmission of their content, the Internet could become biased in favor of wealthy, established companies — leaving every dorm-room startup struggling to draw an audience in the slow lane.
For net neutrality’s opponents, Obama’s message represents the worst kind of government intervention and overreach. Given that there haven’t been any clear-cut violations of net neutrality yet, the opposition argues, we’re talking about regulations we don’t need for a problem we don’t have. And it isn’t just that there’s no obvious transgression to address. New regulations carry a cost, too. Why would ISPs invest in experimenting with speeding up delivery of certain kinds of content — say video, for instance — if that sort of preferential treatment could conceivably land them in court? Service providers’ effort to offer different price points for different data, writes UPenn law professor Christopher S. Yoo, “represent nothing more than the natural evolution of a network trying to respond to an ever-growing diversity of consumer demands.” Given that diversity, it might not make sense for all Internet traffic to be treated or priced equally.
Yet for all of those big-picture questions, the whole regulatory effort turns on serious policy arcana: Whether and how the FCC may apply either Title II of the Communications Act of 1934 or Section 706 of the Telecommunications Act of 1996 to regulate ISPs. The former is 100 pages of statute that would allow the FCC broad authority over the likes of Comcast and Verizon to ensure that they are acting “in the public interest.” Section 706, on the other hand, is two paragraphs and would grant the FCC the ability to require ISPs to “promote competition in the local telecommunications market” and “remove barriers to infrastructure investment” — neither of which goals, some hardline net neutrality advocates say, would do enough to protect a fair and open Internet for consumers. Whichever path the FCC chooses, lawsuits are sure to follow.
This debate involves some of the nation’s biggest telecommunications companies and invokes some of its most complex regulations. It concerns laws that were on the books long before there was an Internet to access and bandwidth to parcel out. At issue is the nature of connectivity and competitiveness, the openness of our society and its information networks, the power and limits of our regulatory architecture. Do rules always stifle competition, or are rules sometimes needed to make competition possible?
These are hard questions, and it says something about our state of political dysfunction that few of us would be willing to leave them to politicians. Good political theater rarely makes for good policy, and in the case of net neutrality, the theatrics we’ve already seen suggest a policy-making process we do not want. Instead, I’d put more confidence in the ability of regulators and judges to balance these competing claims.
Tom Wheeler, the FCC chairman, could be the ideal candidate for this effort. He is an Obama supporter, appointee and fundraiser. He is no stranger to the net neutrality effort, having taking the gauntlet up for most of the year after a federal appeals court struck down the FCC’s 2010 Open Internet Order. But Wheeler is no stranger to industry, either, and has a long track record as a telecom lobbyist. He was a venture capitalist and is a member of the Cable Television Hall of Fame for his work promoting the industry.
The FCC has already voted to delay action on net neutrality until 2015. That move has angered advocates, confused opponents, and frustrated politicians. But letting the glare of public attention fade may be best. This isn’t an issue worth subjecting to the world of shutdowns, “nuclear options,” and endless filibusters. It’s not worth making net neutrality into a stand-in for partisan warfare. And that’s just why independent regulatory bodies exist in the first place, and why their decisions can be subject to judicial scrutiny. Of course politics can’t and shouldn’t be leached away entirely — but there are times and places and issues where politics do more harm than good. Net neutrality is one of them.
