Robert M. McDowell: The Turning Point for Internet Freedom

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As regulators weigh imposing net neutrality on the Web, Congress tries to pre-empt government overreach

Robert M. McDowell writes: The Federal Communications Commission is about to answer the most important question in its 80-year history: Does the agency intend to protect the open Internet, or is it lunging to seize unlimited power over the Web? We’ll find out on Feb. 26 when the FCC votes on “net-neutrality” rules that would treat the Internet like a public utility, with regulators potentially setting rates, terms and conditions for providers.

Meanwhile, the new Congress is maneuvering to change the net-neutrality equation, with hearings in the House and Senate beginning Wednesday. Republicans circulated draft bills on Friday to pre-empt the obama_pc_computeFCC’s overreaching new rules while still attaining the White House’s ostensible policy goals. Even congressional supporters of net neutrality, wary of increasing FCC power over something as vast and crucial as the Internet, are working to draft an alternative.

While Republicans and Democrats try to work out a deal, FCC Chairman Tom Wheeler should hit the pause button on next month’s vote and let the elected representatives of the American people try to find common ground. At the end of this constitutional process, all sides may be able to claim victory.

“For opponents of new FCC rules, the bills could take Title II off the table; restore regulatory certainty; protect free speech; and create a legal firewall that would protect investment and innovation in the Web’s computer-network infrastructures from more government meddling.”

For years Washington has debated how to keep the Internet open and free from government or private coercion. Regulation proponents have argued that new rules are needed to prevent Internet service providers, such as phone, wireless and cable companies, from blocking or degrading the online content or applications consumers want. Though no market failure exists, and regulators have never conducted a study to diagnose the alleged potential illness, the FCC has twice tried to impose new rules on the Web. Each time it lost in court.

“This would also send a strong signal to foreign governments and international regulatory bodies that they should not smother the Web with antiquated rules designed in an era when people held their phones with two hands.”

The tragedy of this debate is that no one, including phone, wireless and cable companies, has ever contested the goals of keeping the Internet open. It has been open and freedom-enhancing since it was privatized in the mid-1990s because it is protected under existing antitrust and consumer-protection laws. Instead, the fight has been over how much regulatory power the FCC should wield.

Mr. Wheeler says the FCC will apply Title II of the 1934 Communications Act—a Depression-era law designed to regulate phone monopolies—to today’s dynamic and decentralized Internet. In November President Obama called for this embrace of Title II—a radical departure from Clinton-era light-touch policies and a clear loser for the Internet and consumers.

Having worked under its mandates for seven years as a senior commissioner on the FCC…(read more)

WSJ

Mr. McDowell, a former commissioner of the Federal Communications Commission, is a senior fellow at the Hudson Institute and a partner in the communications practice at Wiley Rein LLP in Washington, D.C.

 



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