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Legislation to Restore Federal Net Neutrality Mandate ‘Dead on Arrival’

June 22, 2019
By Juliana Knot

The FCC’s net neutrality rules “solved” a problem no one had.

Congress is considering legislation to reinstate an Obama-era Federal Communications Commission (FCC) regulation that treated internet service providers (ISPs) as utilities and required ISPs to treat all Internet traffic the same, regardless of size, quality, or value to consumers.

The FCC rule, which classified ISPs as “common carriers” under Title II of the Communications Act of 1934, was enacted in 2015 by the Obama administration and repealed by the FCC in 2017. Before the 2015 rule, and currently, ISPs have been regulated as information services.

‘Dead on Arrival’

Forty-seven Democrat members of the U.S. House of Representatives called for “bipartisan, bicameral” legislation on net neutrality in Congress, in a letter to House Speaker Nancy Pelosi dated May 22.

The House passed H.R. 1644, the Save the Internet Act, to restore the net neutrality regulations imposed by the FCC during the Obama administration, on an overwhelmingly party-line vote on April 10. The tally was 232-190, with one Republican voting for the measure and no Democrat against.

The legislation passed by the House will be “dead on arrival in the Senate,” stated Senate Majority Leader Mitch McConnell (R-KY) in an April 9 press conference broadcast by C-SPAN.

The FCC’s net neutrality rules “solved” a problem no one had, says Katie McAuliffe, executive director of Digital Liberty, a nonprofit organization promoting policies encouraging a consumer-driven technology market.

“There hasn’t been any indication that any of these companies are blocking or practicing any type of anticompetitive behavior.” McAuliffe said. “If one of the ISPs were to block content from Amazon or the like, it would be considered anticompetitive, and they could easily be taken to court.”

‘Thicket of Complex Rules’

During the period in which the net neutrality regulation was in effect, investment in broadband networks dropped, states the FCC on its website, regarding the December 17, 2017 Restoring Internet Freedom order which reversed the Obama-era rule.

“The effect was particularly serious for smaller Internet service providers—fixed wireless companies, small-town cable operators, municipal broadband providers, electric cooperatives, and others—that don't have the resources or lawyers to navigate a thicket of complex rules,” the FCC website states.

“The Internet wasn't broken in 2015, when the previous FCC imposed 1930s-era regulations,” the FCC states.

Broadband 40 Percent Faster

Claims that without the regulation websites would be restricted or consumers would experience slowing of data have been contradicted by experience since the regulation was repealed, says Jessica Melugin, associate director of the Center for Technology and Innovation at the Competitive Enterprise Institute.

“Despite some outlandish predictions of doom in the wake of the FCC’s decision to repeal the Obama administration’s heavy-handed Title II Internet regulation, we’ve seen big improvements in both speed and access for users since the regulations were lifted,” Melugin said.

“Broadband speeds increased by almost 40 percent, and more homes gained access to fiber in 2018 than in any other year,” Melugin said.

Market Innovation, Competition

Allowing the market to work has made a positive difference, says Thomas Struble, technology policy manager at the R Street Institute.

“All these [ISPs] have room to compete and innovate without the restrictive regulations of Title II,” Struble said.

Treating the Internet as a common carrier has not worked anywhere, says Rosyln Layton, a visiting scholar at the American Enterprise Institute.

“Empirical research of net neutrality rules across 53 countries shows that heavy-handed Title II-style utility regulation does not increase innovation at the edge,” Layton said.

‘Misleading Branding’

Despite the evidence, support for net neutrality regulation polls relatively high among Democrats and Republicans alike, says Struble.

“If you look at [net neutrality] from on high, it sounds good,” Struble said. “It sounds like something you want. However, it’s a sweeping regulation using an outdated framework.

“Net neutrality is very effective branding on behalf of left-wing advocacy groups,” Struble said. “However, it’s not very accurate—it’s misleading branding.”

Sees a Knowledge Gap

More information would change public opinion, says Melugin.

“This is an issue where the more that people understand it, the more that people would oppose regulation,” Melugin said.

“Net neutrality is no public policy exception to the rule that markets outperform regulators,” Melugin said. “It’s not a question of protecting free speech online. This is a question of protecting private property from utility-style government regulation that will hurt consumers.

Those opposed to net neutrality rules must stop “the youth-driven activist earnestness in this debate and replace it with the empirical evidence of a less regulated internet being a healthier internet,” said Melugin.

Politics Over Policy

Organizations that support reinstating the net neutrality rule use it as a political weapon, says Layton.

“It is a reliable fundraising tool, as sophisticated advocacy organizations can raise money and votes with a small but extreme constituency which supports government monopoly of broadband,” Layton said.

“Sadly, House Democrats pursue fake policy when we have critical tech policy issues at stake, including cybersecurity and spectrum,” Layton said.

Juliana Knot (jjknot322@gmail.com) writes from Grand Rapids, Michigan.

Internet Info

Declaratory Ruling, Report and Order in the Matter of Restoring Internet Freedom, Federal Communications Commission, December 17, 2017: https://www.heartland.org/publications-resources/publications/fcc-restoring-internet-freedom-order

Michael McGrady, “Report: FCC Chairman Pai to Reverse Predecessor’s Net Neutrality Takeover,” The Heartland Institute, April 28, 2017: https://www.heartland.org/news-opinion/news/report-fcc-chairman-pai-to-reverse-predecessors-net-neutrality-takeover