Is FCC Declaring 'Open Season' on Internet Freedom?

The FCC, in proposing to change the definition of an “open Internet” from competition-driven to government-driven is setting a very dangerous precedent; that it is acceptable for countries to preemptively regulate the Internet for what might happen in the future, even if they lack the legitimacy of constitutional or legal authority to do so, or even if there is thinnest of justification or evidence to support it.

How can we ever hope to influence China, Iran and other undemocratic regimes to provide more Internet access and freedom to their citizens and businesses when our FCC is proposing a radical take back of existing Internet freedoms without legitimate authority or justification?

The grave mistake the FCC is making in the broader international context is claiming that private companies are the primary threat to Internet freedom and free speech, and not governments. History and common sense tell us only Governments have the effective coercive power to dictate real censorship.

The FCC is effectively declaring “open season” on well-established Internet freedoms.

It is perversely providing legitimacy, justification and political cover for undemocratic countries like China and Iran to hunt down dissidents online and censor free speech while using the Orwellian doublespeak of regulating to “preserve an open Internet.” Undemocratic regimes are always looking for “openings” and excuses to further crack down on their people’s freedom of speech and assembly. Surely, the FCC must appreciate that internationally, actions speak louder than words.

The U.S. has a unique responsibility to not screw up the Internet’s freedoms. As the country that invented, privatized and promoted a free, open and competitive Internet, the world has long taken its cue from America on Internet policy. President Clinton whose administration oversaw the privatization of the Internet, said:

For electronic commerce to flourish, the private sector must continue to lead. Innovation, expanded services, broader participation, and lower prices will arise in a market-driven arena, not in an environment that operates as a regulated industry

The FCC’s proposed “Open Internet” regulations are illegitimate. First, they offend constitutional due process in that they assume companies are guilty of anticompetitive behavior until proven innocent; the FCC would regulate roughly 2,000 companies, for what one has admitted it did, and for what the FCC alleges another has done. Second, they offend constitutional equal protection in that they treat similar companies very unequally. Third, they offend constitutional protection against Government takings because they ban competitive companies from pursuing business models that are legal today. Fourth, they offend constitutional free speech because the FCC apparently does not agree with the Supreme Court that companies have constitutionally-protected freedom of speech.

The FCC’s proposed rules also overstep the FCC’s legal authority. Without congressional authorization of net neutrality legislation, the FCC is granting itself near limitless jurisdiction over the Internet. Moreover, the FCC’s proposed rules are arbitrary and capricious. They would arbitrarily reverse FCC precedent and factual determinations; arbitrarily move the competitive goalposts mid-game; and regulate competitive companies’ business practices more strictly than any monopoly in the last 75 years.

Further undermining America’s credibility to lead on the Internet policy going forward is that the proposed Internet regulations are not justified. They are a solution in search of a problem. The near perfect voluntary industry compliance over the last several years simply does not warrant a permanent ban on legal business behavior. To top all this off, the FCC has offered no evidence of market failure to justify regulating this competitive marketplace.

In sum, America risks both Internet freedoms and its Internet policy leadership when it proposes such a radical policy change without the legitimacy of constitutional or legal authority or the justification of facts. International Credibility 101 says: if you want others to follow your lead, be worthy of following.