What would you say if I told you that the federal government took an 80-year-old law, originally passed in order to regulate apples, and instead applied it today to oranges—rather than simply draft a new law specifically for oranges?
That’s far beyond the pale even for the feds, right?
Yet in 2015, that is exactly what happened. Let’s rewind to 1934, when Congress passed the Communications Act in order to address the growing network of telephones. Among other things, the law outlined provisions to regulate the Bell System as a “public utility.”
Eight decades later, President Obama and his Federal Communications Commission (FCC) Chief, Tom Wheeler, decided that very same law—written years before all but the most rudimentary computers even existed—would work just fine for the federal government to get its hands on the internet.
How ridiculous. It’s not just that this tactic was a regulatory non-sequitur, or that very few people consider the internet to be a public utility in any way, but it was clearly a cynical, abusive end around of Congress well-established constitutional authority to regulate interstate commerce. It isn’t hyperbole to say this amounted to an attempted government takeover of the internet.
The Administration’s excuse for these rules at the time was to implement so-called net neutrality principles. But that doesn’t change the fact that the internet has almost nothing in common with traditional public utilities.
Moreover, nearly everyone in the tech industry and public policy circles already agrees on the principles behind net neutrality, the idea that users should be able to go wherever they like online without fear of selective discrimination against different websites, internet traffic, or data via Internet Service Providers (ISPs). Those principles had never been significantly violated in the first two decades of the internet’s existence—so net neutrality was basically a solution to a problem that didn’t exist.
From the 1990s through the 2000s, investors poured billions of dollars in capital into digital services including high-speed network. The Clinton and Bush administrations realized that a hands off approach was best for the internet’s growth. They didn’t want to interfere with the visionaries and entrepreneurs blazing trails few others could conceive of or act on. Under that light regulatory touch the internet grew our economy, created jobs, and changed our lives immeasurably.
But in the years since President Obama designated the internet a public utility, investment in broadband networks has declined by 5 percent. What would happen to our economy over the long term if the internet remains a public utility open to government meddling?
There are two ways to undo the damage the Obama administration did.
First, we need conservatives in Washington to stand up and take on the issue of overzealous net neutrality by rolling back Obama Era regulations that are jeopardizing the future of the internet. President Trump’s FCC chairman is doing that now.
But, additionally, Republicans in Congress also need to codify a free-market based, legislative solution that locks in basic standards of net neutrality while also promoting continued private-sector investment and innovation and in so doing prevents further shenanigans by the next Democratic president.