Don’t Split This Baby

Washington, D.C., is buzzing with various “compromise” proposals to resolve “net neutrality” and the Federal Communications Commission’s right to implement it. But neutrality is a baby that won’t split.

In 1996, the Clinton administration and the Congress agreed that the Internet was fundamentally different from the rickety Ma Bell phone system. So they deregulated the Internet while perpetuating regulation for the Bell System (in “Title II” of the Telecommunications Act of 1996).

That vision has been proved correct. Deregulating the Internet allowed more than $1 trillion to flow into its construction and improvement, and the U.S. now consistently ranks in the top 10 in the world for speed, despite its sprawling, high-cost geography. But critics now want to apply Title II to the entire Internet, giving the government power over pricing and network management.

Why? Because a court recently ruled that the Internet must fall under Title II if the FCC wants to impose “net neutrality,” the idea that everything on the Internet has to travel at the same speed.

Now we’re seeing some dubious “compromise” proposals to preserve this goal. For example, a “hybrid” proposal from retiring Rep. Henry Waxman (D-Calif.) argues that the FCC should attempt to implement “neutrality” regulations requiring Title II status, but under a different provision of the 1996 Act. If that couldn’t withstand legal challenge, then the FCC would be granted “backup” Title II authority and seek forbearance to pick and choose which parts of Title II apply. But, just like a similar “forbearance” proposal from Rep. Anna Eshoo (D-Calif.), this proposal would create paralyzing regulatory uncertainty and invite judges, rather than the Congress or the administration, to resolve the key issues facing the FCC. It’s like a disarmament treaty that forbids nuclear weapons except in cases where you want to use one.

These flailing attempts to split the baby look all the more pathetic because a real compromise is available, as first suggested by FCC chairman Tom Wheeler: Allow ISPs to explore ways to benefit consumers by encouraging the new services and offerings, and added competition, that “neutrality” prohibits.

Experimentation would let us test the propositions that neutrality advocates have asserted. Is edge provider content being “slowed down?” Are edge providers coerced into paying, and are those payments beyond any concept of reasonableness? Alternatively, the arguments made by neutrality opponents — such as myself — would get close scrutiny as well. Most importantly, do consumers embrace the content brought to them through new services that may not exist today, but could if the FCC got “neutrality” out of the way?

That’s a real compromise, one that doesn’t lead to legal shenanigans or regulates what’s never been regulated before (in the name of less regulation). Instead of trying to split the Internet baby, let’s focus on ways to raise the baby into a healthy and prosperous adulthood.

Ev Ehrlich is president of economics consulting firm ESC Co. and was undersecretary of commerce in the Clinton administration.