Net neutrality is political predation

It’s fitting that the Federal Communications Commission (FCC) chose to dig up the net neutrality corpse just before Halloween. Now, our elected representatives need to find a way to bury it again. Specifically, Congress should strip FCC of much of its authority to regulate the Internet and establish instead a principle of Separation of State and Telecommunications.

The FCC has shown that it is unsuited to a leading role in communications policy in today’s setting. The “open” networks that FCC Chair Rosenworcel invoked as sacred in the September 26 net neutrality relaunch event at the National Press Club can and should co-exist with those “managed,” “blocked” and “throttled,” “pay-prioritized” and fiddled with in every way imaginable.

Property rights are necessary to the healthy creation of infrastructure wealth, of which communications is only one component. With property rights intact, the market is capable of producing different management options from which consumers may choose.

The federal government’s appreciation of prerequisites for infrastructure wealth is abysmal. Washington has trouble approving a single gas pipeline when there should be a proliferation of them. Policymakers think the solution to periodic western water crises is some combination of magic, desalination, and strict environmental mandates rather than market pricing and infrastructure deregulation. The internet and its sister network infrastructures should not be the decrepit C&O Canal or National Road of the 21st Century.

Despite Roserworcel’s call for “national” standards for net neutrality and “openness,” it is fundamentally unreasonable to create a universal regulatory superstructure to deal with occasional isolated access disputes or pricing problems.

In fact, many of those problems are themselves rooted in FCC’s decades old monopoly regulatory legacy, including the granting of exclusive franchises. Some critics of neutrality mean well but they are wrong to call the public utility model “obsolete.” It was never appropriate for old-school phone service and electricity, and remains inappropriate for broadband.  

Those advocating a compulsory dumb-pipe approach are the true threat to openness, robust networks, access to information, and free speech. But this FCC cannot see that.

What we need is infrastructure liberalization across sectors, including communications, electricity, transportation. Market pricing would allow for more internet, and even “splinternets,” for everyone.

Let’s not miss the fact that this order came down from the top of US government. A mis-named July 2021 executive order on “Promoting Competition in the American Economy” (among much undesirable else) “encouraged” the FCC chair to adopt “through appropriate rulemaking ‘Net Neutrality’ rules similar to those previously adopted under title II of the Communications Act of 1934.”

The FCC is supposed to be an independent agency, though its adherence to this directive suggests otherwise.

Rosenworcel denounced the Trump-era repeal of net-neutrality rules, claiming that it put the FCC “on the wrong side of history, the wrong side of the law, and the wrong side of the American public.” It is rather the FCC on the wrong side of history with respect to private control over emergent networks.

Even CNN admits that during “the time since [Trump’s repeal], ISPs have refrained from doing the kind of blocking and preferential treatment that net neutrality advocates have warned could occur.”

This rulemaking is plainly not about consumer protection, but about centralized power at FCC. Redefining and reclassifying broadband as a “Title II” service will allow FCC the freedom it desires to regulate other aspects of communications services.

Washington sees power leaking away to private parties, and it wants that power back.