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Before Net Neutrality Eats the World (Part 14): What Should Congress Do?

(Note: On September 9, the U.S. Court of Appeals for the D.C. Circuit will hear oral arguments in Verizon’s challenge of the Federal Communications Commission’s December 2010 Order on “Preserving the Free and Open Internet.” This series explores fundamental issues at stake.)

As the prior installments of " Before Net Neutrality Eats the World" contend, it would be a grave mistake and historical misfortune for the Federal Communications Commission's (FCC) Order to stand.

Forced "openness" on the assets in existence now will undermine growth of infrastructure wealth and property tomorrow, and downgrade expansion of physical and wireless access to content.

However the U.S. Court of Appeals for the D.C. Circuit ends up ruling, it is absolutely clear that the impulse for genuine liberalization must come from outside the FCC; the regulatory approach to infrastructure creation and access to content will fail, but FCC has no other mission, tool or inclination.

Policy emphasis belongs on fostering the emergence of competitive institutions that replace uninspired and damaging bureaucratic oversight of “long and thin” property.

A handful of things Congress might contribute to such future reforms include:

  • Legislatively affirm that the agency is not authorized by Congress to regulate the Net; Remove FCC's power and advance "Communications Without Commissions."
  • Ban the extension of neutrality mandates (or so-called "openness" rules) to wireless and future technologies.
  • Short of a radical liberalization, legislatively affirm exemption from regulation of future construction and competitive options, to all that which does not yet exist. Guarantee that compulsory neutrality shall not apply to future network extensions or those that are not part of the “public” Internet, and those that seek to break away.
  • Discourage the use of antitrust against large scale content and infrastructure ventures.
  • Have FCC present a report to Congress, not critiquing “discrimination” and other alleged "market failures," but articulating the pro-market role of pricing and network management freedom, and clarifying the agency’s understanding of the primacy of private enterprise in creating and managing networks.
  • Hold detailed hearings not on private business practices, but on FCC practices and political failure: its scope of authority and whether it’s growing or declining, its interventionism, its expansion in staff and budget, its reason-for-being in modern times compared to that invoked at its origin. Such concerns were covered in "Before Net Neutrality Eats the World (Part 5): The Fallacies Motivating Net Neutrality."
  • Explore the state of infrastructure regulation across all sectors, not solely communications, and create inter-agency plans for liberalization and the potential for future cross-industry consortia.