Any day now, the U.S. Court of Appeals for the D.C. Circuit is expected to release its decision in U.S. Telecom Association v. FCC. The case involves a challenge to the Federal Communications Commission’s so-called “Open Internet Order,” a set of regulations the agency issued in early 2015 when it voted on party lines to begin treating Internet service providers like public utilities under the Communications Act. The FCC’s Democratic majority, led by Chairman Tom Wheeler, felt these rules were necessary to protect a concept known as “net neutrality,” which holds that the government should prevent broadband companies from treating Internet traffic differently based on the contents of the traffic.
We at the Competitive Enterprise Institute, however, don’t think the government should dictate to Internet providers how they manage their networks—and we’re especially concerned that the FCC, a federal agency overseen by unelected bureaucrats, has unilaterally asserted the authority to regulate broadband firms like the old Ma Bell telephone monopoly without approval from Congress. That’s why we filed an amicus brief with the D.C. Circuit last August in which we urged the court to invalidate the FCC’s rules as an unlawful overreach, and why we’ve written so much on these pages discussing the flaws of net neutrality regulation. For example, my colleague Wayne Crews penned a 15-part series, Before Net Neutrality Eats the World, explaining how the FCC’s agenda is fundamentally at odds with “infrastructure wealth creation.” And I wrote essays for MSNBC and Reason explaining why the FCC’s decision to regulate Internet providers was a grave mistake.
It’s 2016. The question we really ought to ask ourselves isn’t how bureaucrats can do a better job regulating the Internet, but whether we even need a telecommunications regulator with wide-ranging authority now that competitive markets are thriving across the Internet ecosystem. From traditional cable and telephone companies delivering faster speeds at lower prices to wireless carriers offering bigger data packages over next-generation networks, consumers have more and more meaningful choices among the firms that provide Internet connectivity. Meanwhile, Internet behemoths like Facebook, Amazon, Apple, and Google—all of which focus chiefly on providing services and devices that rely on Internet access—have more sway than ever when it comes to disciplining providers of broadband facilities that don’t meet consumer needs. Google has even started building its own fiber optic broadband service, which is already available in Austin, Kansas City, Nashville, Atlanta, and Provo—and is slated to come online in cities including San Antonio, Charlotte, and San Francisco. In short, throughout the Internet’s many layers, markets are working, and consumers are winning.
Hopefully, the D.C. Circuit agrees with CEI and the many other public interest groups and companies that have urged the court to set aside the FCC’s net neutrality scheme. If, however, the court upholds the agency’s regulatory power grab, the responsibility to rein in the FCC will fall to Congress—which writes the laws from which every federal agency derives its power. An FCC victory should galvanize lawmakers to move quickly to pass legislation that explicitly deprives the agency of any authority to dictate how Internet providers manage their networks. Otherwise, the FCC is sure to continue to expand its powers over the Internet, potentially transforming a vibrant and competitive sector into a dreary and stagnant one.