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Will FCC Preserve or Change the Internet?

The crux of the FCC's non-transparent proposed Open Internet Order will be whether it envisions: a very limited Internet enforcement role for the FCC, or an expansive economic regulation and Internet management role for the FCC.

 

  • The "Waxman Compromise" envisioned a very limited, two-year, enforcement-only role for the FCC that at core recognized the Constitutional authority of Congress to determine U.S. Internet policy.
  • FreePress and the Open Internet coalition envision a permanent, expansive, economic-regulation, and Internet-management role for the FCC that snubs Congress' authority, policy, and consensus.

 

The real test of whether the FCC is limited or expansive will be whether the word "preserve" is used forthrightly in the actual text of the FCC Open Internet order: i.e. will it respect or abandon Congress' meaning of "preserve" in section 230: "to preserve the... competitive free market... Internet... unfettered by Federal or State regulation."

 

  • A very-limited, Congress-deferring, true enforcement role for the FCC to address the potentiality of anti-competitive behavior,  could plausibly comport with the Congress' policy vision for a competitive, free-market Internet and also would have a better chance of surviving legal challenge.
  • On the other hand, an expansive, Congress-challenging, economic-regulation, Internet-management role for the FCC cannot plausibly comport with Congress' policy of a competitive free market Internet and would have little chance of surviving legal challenge.

 

At core the question is whether the FCC will overreach, and not try to forthrightly "preserve a free and open Internet," but actually change the Internet as we know it.

Here are some questions that focus on whether or not the FCC really intends to "preserve" or change the Internet:

Does the actual text of the approved order, not the public statements and characterization of the order:

  • Supplant current market-competition-centric Internet policy with FCC-regulation-centric policy?
  • Transform the current user-driven Internet dynamic into an FCC-driven dynamic?
  • Morph the current privately-run Internet into a government-run Internet?
  • Revolutionize the current voluntary bottom-up Internet into a coerced to-down Internet?
  • Introduce new business, investment and operational uncertainty where little existed?
  • Subordinate private standard-setting bodies to new FCC omni-technical oversight and approval?
  • Supplant the Internet's inherent efficiency with the Government's inherent inefficiency?
  • Bar broadband companies from entering and competing effectively in the cloud computing business?
  • Force one-way convergence, where applications can converge into conduit, but conduit cannot converge into applications?

In sum, when the actual test of the FCC order is made public, will it "preserve" the freedom and openness that currently exists, and has long existed on the Internet, or will it fundamentally change the Internet by effectively redefining what the Internet is and what the FCC's Internet role is?

  • Simply, the Internet is not broken.
  • The rub here is whether the FCC understands that, and assumes a very limited enforcement role, or whether it adopts a very expansive view of FCC authority and its role vis-a-vis the Internet, like the FCC has proposed over the last year.

 

 

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