Restraint is the Keystone

The following is an edited excerpt of a March 13 speech to the Broadband Cable Association of Pennsylvania’s Cable Academy by Matthew Berry, chief of staff to FCC commissioner Ajit Pai.

The private sector has overwhelmingly respected Internet freedom, and the reason why is simple: It’s what consumers want.

I wish I could say that everyone in Washington, D.C., understood just how competitive and dynamic the market is. But the federal government is all too slow to recognize competition, too quick to impose regulation, and too dismissive of the harm to consumers and innovation caused by too much meddling in the marketplace.

This is the same government that believed tying would allow Microsoft to monopolize the browser market and thought AOL would dominate instant messaging forevermore at the turn of the millennium. So I think that Congress got it right back in 1996 when it wrote that the policy of the United States is “to preserve the vibrant and competitive free market that presently exists for the Internet … unfettered by federal or state regulation.”

And yet, the Federal Communications Commission is once again gearing up to regulate Internet-service providers with net-neutrality rules. This will be our third attempt to regulate network-management practices. In the interest of full disclosure, as general counsel, I was involved in our first effort, which the Court of Appeals invalidated in 2010.

When the FCC then tried to adopt so-called open Internet rules, the D.C. Circuit struck down all but one. So as we are about to take our third bite of the apple, it seems that the commission is taking its inspiration from the proverb popularized by the British author William Edward Hickson: “If at first you don’t succeed, try, try, try again.”

I’d suggest the commission look to an American source: Reader’s Digest. In 1949, it published a “Quotable Quote” that was attributed to the legendary comic W.C. Fields: “If at first you don’t succeed, try, try again. And then quit. There’s no use being a damn fool about it.” Now, it’s not entirely clear whether Fields ever actually uttered these words, but when it comes to regulating the Internet, they are wise counsel.

To be sure, no one should confuse opposition to government regulation with opposition to an open Internet. Indeed, I strongly support an open Internet.

But everyone used to agree that an open Internet was tied to consumer freedom. No longer for net neutrality advocates. Now the focus has shifted to flyspecking network management practices. But before doing so, we need to think long and hard about whether taking that step is really good for consumers. The FCC shouldn’t try to lock in place today’s broadband business models, and it shouldn’t try to codify yesterday’s network management practices.

Rather, it should stand aside and allow for the Internet to continue developing, to continue evolving. Such restraint should be the keystone of our nation’s Internet policy going forward because it will maximize our nation’s broadband capacity and produce the smartest networks, outcomes that would be good for consumers, edge providers and network operators alike. Let’s continue to give providers the freedom to respond in dynamic, innovative ways to consumers’ demands.