I rise today to discuss the Federal Communication Commission’s welcome proposal to end utility-style regulation of the Internet by reversing the 2015 Open Internet Order.
Anyone who has followed the hyperbolic debate about net neutrality has likely heard that the FCC is moving to “squelch competition,” “limit consumer choice,” “raise prices,” and perhaps even “destroy the Internet.” At least, that is what some activists and crusading late-night comedians claim.
But none of this is true. Rather, the FCC is reviving the “light-touch” regulatory environment that facilitated innovation and expanded Internet access to millions of Americans over the course of many years.
In order to understand this complicated issue, we need to be honest about what led us to where we are today: the FCC’s 2015 Open Internet Order.
The Obama-era FCC claimed that its Order implemented “net neutrality,” or the equal treatment of all data over the Internet. But this isn’t quite right. The actual change was far broader: The FCC reclassified broadband Internet access service as a Title II “telecommunications service,” instead of a Title I “information service.” This seemingly innocuous change applied a host of New Deal-era regulations meant for monopolies to the Internet. It subjected 21st century technology to the same rules that governed rotary telephones in the 1930s.
Why did the FCC do this?
It wasn’t because a free and open Internet was harming Americans. The activists and entertainers clamoring for more government control of the Internet claim it is under attack by predatory Internet Service Providers. But strangely enough, none of them actually provide evidence for that serious assertion. Instead, they speak about imaginary or hypothetical harms. The 400-page Order uses words like “may,” “could,” “might,” or “potentially” several hundred times.
Nor did the FCC issue the Open Internet Order because Congress told it to. On the contrary, nearly twenty years ago, our colleague Senator Wyden, along with then-Senator John Kerry and others, expressly argued against the drastic action taken by the FCC in 2015. After passing the bipartisan Telecommunications Act of 1996, this group of senators affirmed the Internet’s status as a free and open information service, stating that [QUOTE] “nothing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services.”
Finally, the FCC did not intervene because it had evidence of market failure. When the FCC issued its Order, the Internet was still an explosive source of growth and invention—as it had been for decades, when greater and greater numbers of Americans gained access to the Internet for the first time. Perhaps because of this inconvenient fact, the FCC hardly considered the possible economic effects of its regulations. The FCC’s chief economist at the time went so far as to say that the rules were an “economics-free zone.”
What the Internet does need is regulatory certainty, which is why I recently introduced the Restoring Internet Freedom Act with several of my colleagues. This bill would fully repeal the FCC’s 2015 Internet takeover. More importantly, it would prevent the FCC from interfering with the Internet in the future unless specifically authorized by Congress.
But we shouldn’t stop there. Instead of waiting for regulators and activists to find new excuses to restrict the Internet, we should open it further to extend more choices to American consumers.
In other words, we should ensure that federal policy promotes competition. As we know from experience, heavy-handed regulations like the FCC’s Order tend to favor large, deep-pocketed companies over startups that can’t afford an army of lobbyists in Washington. Removing these regulatory barriers will allow upstart entrepreneurs to compete with incumbents for consumers’ loyalty. Those consumers—ordinary Americans and their families—will benefit from the improved service and lower prices this competition creates.
Most American households currently have access to at least one Internet Service Provider. Many have access to two or more, which might look like a competitive market exists for those households. But regulations can keep these different options from being adequate substitutes for one another. And the government restricts access to valuable resources that could be used for high-quality Internet services. According to a 2012 report by the Obama administration, the federal government is sitting on upwards of 60% of the best radio spectrum—so-called “beachfront” spectrum—which could be put to use for commercial Internet services like 5G wireless broadband. Meanwhile, excessive permitting, licensing, and environmental impact regulations delay broadband deployment over federal and public lands, especially in the West. Finally, the Office of Management and Budget found that private parties spend nearly $800 million each year to comply with FCC paperwork requirements. The bill for all this work ends up being paid by ordinary American families.
Thankfully, my colleagues in the Senate have already identified many of these problems, and have done work to address them. Senators Klobuchar and Daines have spent considerable time on policies to streamline broadband Internet deployment through their “Dig Once” proposals. Senator Heller is a champion for reducing barriers to deploying broadband throughout the West. Senators Thune and Nelson, the chairman and ranking member of the Senate Commerce Committee, have introduced measures in past sessions of Congress to free up radio spectrum held by federal agencies and organizations. These are just a few of the many thoughtful ideas to reduce barriers to entry.
The bipartisan nature of these policies demonstrates a clear understanding that improvements can be made.
And everyone should be able to agree that more competition is better for American consumers, especially those in rural or low-income households. Everyone should also be able to agree that consumers should be protected from unfair and deceptive business practices. Thankfully, the Department of Justice and Federal Trade Commission already enforce clear rules that protect Americans’ enjoyment of a free and open Internet. The combination of competition and strong enforcement of antitrust and consumer protections provides the benefits of an innovative marketplace while avoiding problems that come from tired, anti-consumer regulations like Title II and the 2015 Open Internet Order.
For the sake of American consumers and innovators—not for entrenched business interests—I hope to work with partners in the House, Senate, and FCC to promote competition in the technology sector, including among Internet Service Providers. If that means underperforming companies have to work a little harder for their customers, all the better. Because the end result of lively competition is more investment and innovation by businesses, which translates into more choices and better service for consumers.
So I encourage my colleagues, regardless of party or ideology, to work with me on this project. If they are truly interested in a better Internet—not just government intrusion and control for its own sake—I’m sure they can help me identify other barriers to entry to the information superhighway.
For now, a good start to ensure American consumers and small businesses benefit from the Internet is to repeal the FCC’s 2015 Internet takeover, enforce antitrust and unfair and deceptive practice standards, and encourage competition among Internet firms. Only then can we guarantee an Internet that is free and open for everyone.