Brent Skorup explains at National Review Online why a court ruling favoring “net neutrality” represents bad news for fans of freedom.
Few expected it. Last week the D.C. Circuit Court of Appeals, in a 2–1 decision, completely upheld the Federal Communications Commission’s 2015 order regulating the Internet under Title II of the 1934 Communications Act, an order commonly called “net neutrality.” Most analysts predicted that the FCC would at most get a partial win, but legal challenges asserting that the order violated administrative law, the Communications Act, and the First Amendment failed to convince two of the three judges that deference was unwarranted. The decision ratifies the FCC’s decades-long transformation from economic regulator to social regulator and, if not reversed, will do lasting damage to U.S. technology and to free speech.
Readers with passing knowledge of net neutrality may have heard that it means that Internet service providers must treat all Internet traffic the same. This notion of equal treatment, repeated in the first line of the court opinion, has unknown origins, makes no appearance in the rules, and is widely derided by network engineers as a fantasy. Many services transmitted on broadband lines would break with “equal” treatment.
As you might gather from the FCC’s two prior failed attempts at regulating the Internet and from the length of the final order, net neutrality is far more than a traffic-management requirement. In the words of Tim Wu, the law professor who coined the term, the Internet rules are about giving the agency the ability to shape “media policy, social policy, oversight of the political process, [and] issues of free speech.”
The court decision is a godsend for the New Deal agency that was created to oversee the telegraph industry, AT&T’s long-distance monopoly, and broadcast radio. The upheld rules give the FCC sweeping new authority to regulate Internet and Web companies.
Title II regulations, created to police the Ma Bell monopoly, transform the Internet from a virtually unregulated, private system of networks into a quasi-public utility subject to conflicting common-carrier precedents, bureaucratic designs, and interminable waiver proceedings.
Many rules and regulations kick in, including a selective ban on blocking Internet content and oversight of the competitive Internet interconnection market, but the so-called general-conduct standard swallows them all. This amorphous rule allows the FCC to prevent any practice by an Internet access provider that the FCC believes will “unreasonably disadvantage” an Internet user, application, or content provider. The FCC and net-neutrality advocates correctly recognize that if the agency can monitor and control the distributors of speech, they can shape culture and politics.
