In the pen and phone era, one of the many examples of the descent into arbitrary lawmaking influencing an entire sector of the economy is the Federal Communications Commission’s order on net neutrality. Net neutrality is the FCC’s broad push to control both the infrastructure and content of tomorrow’s Internet. Today is the net neutrality order’s first anniversary, being “celebrated” by some senators with a just-introduced bill to repeal it called the Restoring Internet Freedom Act that, alas, is not the first attempt.
With net neutrality, the government would regulate the internet by using unashamedly authoritarian “advisory opinions”—not normal laws passed by Congress, and not even sub-constitutional APA regulations. One cannot fail to recognize the Mother-May-I culture that net neutrality will inflict, to the great detriment of consumers, telecommunications infrastructure, and content wealth.
Buried in the FCC order is this gem:
Although the Commission historically has not used advisory opinions to promote compliance with our rules, we conclude that they have the potential to serve as useful tools to provide clarity, guidance, and predictability concerning the open Internet rules. Advisory opinions will enable companies to seek guidance on the propriety of certain open Internet practices before implementing them, enabling them to be proactive about compliance and avoid enforcement actions later. The Commission may use advisory opinions to explain how it will evaluate certain types of behavior and the factors that will be considered in determining whether open Internet violations have occurred. (Emphasis added.)
It’s backward enough that the FCC has elected to regulate tomorrow’s Internet as if it were yesterday’s common carrier utility, and Congress hasn’t revoked funding and shut the FCC down for that alone. Companies will be demeaned and reduced to checking in with FCC first before conducting ordinary business transactions.
The issue is also currently being battled in court, and if the court approves this monstrosity, no laws need be passed by Congress, and no further APA-compliant rules need be issued by the agency to control the future of the Internet sector—the FCC will have the power it needs through the backing of the court. This regime will start with infrastructure firms, but despite assurance to the contrary by the FCC, net neutrality will eventually encompass the content and app sectors, who, by then, may lack the moral authority to object.
Net neutrality is anything but neutral and must be halted before the FCC essentially dominates the Internet sector.