One of the most contentious disagreements in the net neutrality debate in the U.S. over the past year has been over whether the new rules adopted by the Federal Communications Commission amount to regulation of the Internet.
Critics have blasted the new rules, saying they amount to ”unprecedented” regulations and a government takeover of the Internet.
The new rules allow the “insertion of the commission into every aspect of the Internet,” Republican FCC member Michael O’Rielly said during a congressional hearing Thursday.
Wall Street Journal editorial writer Daniel Henninger took the argument a step further into the land of hyperbole: “Got a new Web idea?,” he wrote on March 11. “Run it by your Washington reps. Which will include the regulatory enablers of the Obama White House. They didn’t invent the Internet. But now they run it.”
Net neutrality supporters, including FCC Chairman Tom Wheeler, say the critics have it wrong. The new rules “do not regulate the Internet,” Wheeler said in an FAQ published last week. “It applies to broadband providers—the companies that connect people’s homes to the public Internet.”
So do the new rules regulate the Internet? It depends on how you define “the Internet,” but the case can be made that neither side is exactly right.
Wheeler’s argument defines the Internet as the content on the Internet, rather than its infrastructure, probably a widely accepted definition these days, but more in line with the traditional definition of “the Web.” The FCC rules have little to say about Web content, other than prohibiting broadband providers from selectively blocking or slowing some content.
The net neutrality order, in fact, takes pains to define the regulated service it calls “broadband Internet access service.” The new regulations cover “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints,” according to the rules.
But the assertion that the rules don’t regulate the Internet at all are questionable. The rules do regulate the last-mile transmission piece of the Internet. Under the classic definition of the Internet—a system of interconnected computer networks, separate from Web content—the FCC rules certainly regulate the Internet.
There is also debate over whether the new rules will allow the FCC to regulate broadband rates, a key point in critics’ assertion that they amount to regulation of the Internet. The question came up in congressional hearings this week, with Republicans asking Wheeler if the new telecom regulations, requiring ISPs to deliver “just and reasonable” service, could lead to complaints that prices aren’t reasonable.
Wheeler acknowledged that it’s possible, if not likely, that someone could file such a complaint. The FCC, however, is “not in the business” of regulating broadband subscription prices, he said, and it would look skeptically at such a complaint.
It might even be a stretch to say there’s a government takeover of the transmission portion of the Internet, if “takeover” suggests that the government takes control of it. Free-market advocates like to use the words “regulation” and “takeover” interchangeably, but in common use, they mean different things.
AT&T, Verizon and Comcast will have new rules to play by, arguably giving the government more control of those last-mile connections, but the FCC hasn’t literally taken over their networks.
As for “unprecedented” new regulations, that argument, too, is a bit of a stretch. The new rules reclassify broadband as a regulated telecommunications service, but in 2002 the FCC decided cable broadband service was a lightly regulated information service, and in 2005 the FCC deregulated telecom-based DSL and classified it as an information service.
So precedent for treating broadband as a regulated telecom service does exist.
Finally, many critics of the FCC order say it ends about two decades of a “light touch” regulatory approach toward the Internet. That’s been the stated policy of the U.S. government, but actual practice is a little more messy.
Congress, in particular, has passed several laws, and attempted to pass many others, that regulate Internet content over the past two decades.
An incomplete list:
— The Communications Decency Act of 1996 attempted to regulate online pornography, but was struck down in court.
— The Digital Millennium Copyright Act of 1998 set up a process for copyright owners to complain about infringing content—and in some cases, perfectly legal content—posted on websites and required websites to take it down.
— The Child Online Protection Act of 1998 intended to protect minors from online pornography and other objectionable material, but was struck down in court.
— The Patriot Act of 2001 required Internet-based companies, and all kinds of other businesses, to share business records with surveillance agencies.
— The CAN-SPAM Act of 2003 set up rules for the sending of bulk marketing emails.
— The Unlawful Internet Gambling Enforcement Act of 2006 outlawed most forms of gambling online.
— The Stop Online Piracy Act of 2011 would have required Internet service providers to filter out the domain names and search engines to block websites accused of infringing copyright, but was not passed by Congress.
— A group of lawmakers has been trying unsuccessfully for years to require online sellers to collect sales taxes for states.
The list doesn’t include dozens of cybersecurity bills, including unsuccessful efforts to require companies with data breaches to warn customers, and a series of enforcement actions by the U.S. Federal Trade Commission related to online privacy and cybersecurity.
“Light touch” is in the eye of the beholder.