Reaction to the FCC’s recent vote undoing an Obama-era order governing internet service providers, or ISPs, has been hysterical. I don’t mean funny. I mean literally hysterical: overwrought, unduly emotional, unhinged.
Of course, one expects a certain degree of hysteria on social media. Celebrity-driven campaigns and 140-character analyses tend to lack both rigor and nuance. But even mainstream media outlets have gotten caught up in this particular frenzy. A CNN.com headline, for example, proclaimed soberly it was the “end of the internet as we know it.”
That’s poppycock. The FCC voted merely to withdraw “common carrier” classification of ISPs and return them to the “information service” status they held until 2015. Rather than “ending” the internet, the FCC took it back to what it has been for most of its existence.
So why did the commission do that? One reason is that strict net neutrality — requiring ISPs to afford the same treatment to all internet content — can be bad for consumers. Under strict net neutrality, an ISP couldn’t prioritize content transmission in which congestion delays ruin the user experience (an internet video conference or, eventually, navigation of autonomous vehicles) over transmissions in which delays are less detrimental (downloads from a photo-sharing site).
Strict net neutrality would also preclude a mobile broadband provider from exempting popular content providers from data caps. Indeed, under the now-reversed order, T-Mobile was hauled before the FCC to justify its popular “Binge On” service, which offered cost-conscious subscribers unlimited access to Netflix, ESPN, and HBO.
The FCC has freed ISPs to manage their traffic to optimize users’ experience and to offer the subscription packages consumers most desire. But will ISPs really use their freedom to do that? Well, yes. That’s because other forces, besides the FCC’s heavy hand, will punish harmful instances of non-neutral network management.
The most potent of those forces is competition. As the histrionics over the recent FCC vote reveal, people are passionate about unfettered access to web content. Any ISP that tried to block its subscribers from lawful content would take a beating in the media — both traditional and social — and would pay dearly in the marketplace. Most Americans have access to multiple ISPs, and competition is expanding by the day, particularly as mobile broadband expands.
The market forces that protect consumers from harmful instances of non-neutral network management will be supplemented by antitrust law, which precludes ISPs from favoring content in any way that harms market competition. Last week’s vote restored antitrust rules that were preempted by the 2015 order and provided the Federal Trade Commission with authority to police anti-competitive instances of non-neutral network management.
Just consider the record. Indeed, in seeking to justify its net neutrality rules, the Obama-era FCC could come up with only four instances of harmful non-neutral network management over the entire history of the commercial Internet. The now-reversed order was simply unnecessary.
The “Mother, may I?” regulatory approach resulting from common carrier classification appears to have impeded innovation and investment. In the first half of 2015, as the commission was formulating its more heavy-handed policy, spending by ISPs on capital equipment fell by an average of 8 percent.
That was only the third time in the history of the commercial internet that infrastructure investment fell from the previous year. The other two times were in 2001, following the dot-com bust, and in 2009 after the 2008 financial crash and ensuing recession.
Despite the hysterical reactions, then, the FCC has done the right thing. The order it reversed was both unnecessary for consumer protection and an impediment to broadband deployment. Those remote communities in Missouri still waiting for broadband to reach their doorsteps deserve government policies that spur, not discourage, investment.
Thom Lambert is a law professor at the University of Missouri.