Regulatory Restraint, Full Throttle

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By the end of March, Netflix, Google, Facebook, Disney, and Amazon had all agreed to reduce the quality of their content or delay launches of new services in order to prevent potential Internet congestion in Europe. This practice, known as throttling, was requested by European Union (EU) authorities in response to the huge number of people being pushed online to work and learn during the corona virus health crisis. But throttling is also one the key practices outlawed by proposed net neutrality rules in the U.S.

Stateside, net neutrality rules were adopted in 2015 as part of heavy-handed regulations that classified the Internet as a “common carrier” and gave the Federal Communications Commission (FCC) broad powers to regulate Internet service providers (ISPs). Specifically, it prohibited ISPs from blocking access to legal content, throttling (or slowing) of data, and fast lanes that would speed data across the network in exchange for a fee. In 2018, those regulations were overturned by a new Republican majority at the FCC. Since then, Internet deployment and speed has thrived.

Republican members of Congress, seeking to stop the back and forth at the FCC that comes with changes in administrations, are proposing net neutrality legislation of their own. Stopping short of what they view as regulatory bridge too far, their bills preserve the current definition of the Internet as an information service, somewhat curtailing the FCC’s regulatory power. But they do return to an outlawing of blocking, throttling and fast lanes. The ideas that those practices are never beneficial and that there’s a consensus on prohibiting them should be called into question by the EU’s recent pleas for throttling.

Members of Congress pursuing compromise or bipartisan net neutrality legislation should think twice about regulating away certain practices as a priori harmful. Who knows what future circumstances or innovations might render today’s prohibited behavior useful or necessary? Among the greatest harms of regulation are the beneficial market responses it often prevents and the innovations it precludes. It’s not just in times of crisis that citizens deserve the most possible flexibility and the greatest range of solutions.