Opinion on the FCC’s Third Way Regulation of the Internet

In publicizing his decision to reclassify broadband as a Title II telecommunications service, FCC Chairman Genachowski took some pains to try to reassure the investment community that he was not making any sudden moves that should discourage broadband investment. But despite his efforts to try to limit the impact of his move, he has crossed a Rubicon that should never have been crossed. Broadband internet was never regulated under the Title II rules that grew up for the monopoly “Ma Bell” era, and for good reason.  It was because the Internet was allowed to grow in an unregulated competitive market that attracted massive investment by competing providers and delivered the astonishing broadband throughput that enables all the cool Internet business models. No student of technology should feel comforted when the government decides that technological innovation has gone far enough, and we can stop now and write it into rule. No student of regulatory history should be sanguine about promises to limit the scope of government once it asserts control. Every student of government should be alarmed when the government picks favorites, asserting control over the selected few parties who built the “core” of the Internet to today’s capabilities, to benefit its favored parties at the “edge,” claiming all the while that it is not touching the Internet or free speech, when it is in fact doing both. It has been only weeks since we and Google collectively scolded China for centralized government controls which are anathema to the Internet—and now we are inviting centralized government controls when it favors Google. We should be troubled, too, by some of the reasoning offered. It conspicuously avoids inconvenient facts, such as broadband never having been subject to “Ma Bell” regulation. It seeks to write for itself a new Title of the Communications Act that Congress never adopted, ignoring a Congressional mandate to leave the Internet “unfettered” by regulation. While the Commission will be inviting further comment, matters this profound should not be left to an unelected agency, no matter how bright and well-meaning. If we are to reconstruct communications and media law, we should be turning to Congress. And if we are straying towards a world in which the government decides which speech is free and which is not, we should be turning to the Bill of Rights to remind us of why the government is supposed to limit its reach in the first place.