Comments of MediaFreedom to the FCC
MediaFreedom.org has long-argued against FCC imposition of its Net Neutrality rules, believing that the vibrant Internet ecosystem would be harmed by this unwarranted regulation. Although the latest proposal by the FCC appears headed in a more moderate Section 706 / “commercially reasonable” direction, the very idea of protecting the Open Internet in this manner remains wrong. These rules, if adopted in any form, will ultimately lead to broad, pervasive and stultifying Internet regulation, which will frustrate broadband deployment and harm Americans. The FCC should refrain from issuing its Net Neutrality rules at this time.
MediaFreedom.org would like to briefly outline four concerns it has about the present NPRM:
1. The proposed rules go against a nearly 45-year deregulatory trajectory, which has made the Internet ecosystem the astounding tool that it is. Instead of comporting its efforts to these deregulatory goals, the Commission has radically changed course, working to mandate expansive regulations that stand against longstanding congressional policy to further broadband (or subsequent) communications infrastructure deployment for Americans. Over the past 10 years, the infrastructure industry has poured over a trillion dollars into building-out broadband capacity. It has performed on its end of the bargain. The present NPRM represents a bait-and-switch of the highest order; the FCC should be estopped from going forward with its infirm plan. The Commission’s proposed actions unilaterally break the deregulatory “contract” to the sole benefit of the Commission. The public interest, now and going forward, cannot be furthered by this one-sided action. Providers will not want to come to the table and help the FCC meet its congressional policy goals if they fear that any “contracts” they make with the Commission can be tossed out so capriciously, without regard to Congress’ prerogatives or the health of the underlying marketplace. No doubt, the politics shouting for Internet regulation are great. The Commission should resist this pressure, however, and avoid the conceit that the agency can “fix” what is not broken. The present “light touch” compact works for the entire Internet ecosystem. It should not be jettisoned for politics.
2. Chairman Tom Wheeler tweeted the other day that 647,000 comments have poured into the Commission for this NPRM. In the overturned Net Neutrality rules, the Commission noted it “considered” 100,000 comments to arrive at its regulation, ostensibly trotting out that number to show that people were somehow concerned about the loose, perhaps never fully understood concept of Net Neutrality. In the present NPRM, groups like Free Press have pushed their followers (or databases) to urge the Commission to ban “discrimination.” Do the black-box “commenters” actually know what they’re asking for (which, likely unbeknownst to them, implicates broad Internet regulation through sections 201, 202, 208, 222, 251, 254, 255 and 256 of the Act, among other aspects of the law)? Probably not. Moreover, what does “ban discrimination” mean when the Act actually allows it? MediaFreedom believes these “comments” are no more informative or reliable than non-random polls and thus deserve little weight in the final rule. Accordingly, we urge the Commission to use this information only sparingly – certainly not as 140-character PR designed to “prove” Net Neutrality is the “right” policy and what the masses want.
3. 80 years ago, the Communications Act of 1934 carved in stone the idea that if a company agreed to provide communications to serve the public interest, it essentially lost its First Amendment rights (among others). This mindset still pervades the Commission as witnessed in the present NPRM. More specifically, calls to ban “paid prioritization,” “discrimination” or “fast lanes” between network providers and third parties are tantamount to prior restraint, wrongly outlawing commonplace tools used in every other sector of our economy to differentiate products and services for consumers. This unconstitutionally limits the individual liberty / free speech interests of private parties providing Internet service. MediaFreedom does not read the First Amendment as saying communications companies can only be “sort-of” communications companies if the FCC were somehow involved in their business; that these companies must be more like trains / carriers than actual communicators. In a converged world, Internet communications companies must be able to decide for themselves how they want to be communications companies, not FDR. The First Amendment demands that “paid prioritization,” reasonable “discrimination” and “fast lanes” be allowed on the Internet – the FDR-era Communications Act and the policies that implement it do not trump that individual right.
4. Banning “prioritized agreements” / “fast lanes” by enforcing “zero pricing,” or imposing strict Title II, “open access” regulation on ISPs, is an affront to private property ownership. It represents an involuntary servitude and taking that cannot comport with the Fifth Amendment of the U.S. Constitution. The FCC’s essentially state-mandated subsidy from private ISPs to edge providers for a public use needlessly blights the title of nearly 3,000 ISPs to “correct” four past, specious “Net Neutrality” violations they had nothing to do with, and to “protect” against the conjectured fear that ISPs will unreasonably discriminate against competitors to favor their own offerings. In doing so, however, it unreasonably interferes with an ISP’s ability to fully and fairly recapture the value of its private investment, risk and labor. This begs the question: Who’d want to build-out infrastructure if the government can willy-nilly steal it? The answer: No one. To this end, the FCC must reject its confiscatory proposals or risk forever retarding the Internet’s growth and development.
MediaFreedom believes the FCC’s proposed Net Neutrality rules, in any form, are unwarranted, and respectfully urges the Commission to reject them in favor of allowing the market, unfettered by regulation, to serve, grow and benefit the Internet and its myriad users.
Director – MediaFreedom.org
MediaFreedom.org is a free market-oriented 501(c)(3) nonprofit, which works to minimize the Federal Communications Commission’s regulatory imprint on U.S. communications policy. MediaFreedom urges policymakers to more confidently rely on today’s technological evolution, industry best practices and peer group policing, consumer education and transparency tools, marketplace competition, and presently available enforcement laws to protect consumers from actual, not conjectured, harm. We believe that this approach better serves consumers and the marketplace than do new laws or regulations when addressing most marketplace issues that arise.