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April 9, 2018

Protecting the Open Internet

  Washington Times

The decades-long debate over net neutrality — the principle that all Internet data must be treated equally and fairly online and no Internet company should be allowed to censor or discriminate what we do or see in cyberspace — has reached an inflection point.

Last fall, Federal Communications Commission (FCC) Chairman Ajit Pai successfully reversed the Obama regulatory overreach that exploited the net neutrality issue by using it as a stalking horse to do much more: Classifying Internet providers as “common carriers” and putting the feds in charge of everything. The Pai reform rolled back Obama-era regulation, which ensures that a free enterprise culture of creative disruption and permissionless innovation will continue.

But Democrats in Congress are working feverishly to restore the Obama rules by abusing a device called the Congressional Review Act (CRA). And while the effort will likely fail, their gambit shows how determined the minority party is to put the federal government back in charge of micromanaging the Internet.

The intent of the Congressional Review Act is to overturn regulations, not re-impose them. It was created to give Congress a chance to give a thumbs up or thumbs down on new agency regulations. So using a CRA to restore oppressive federal Internet regulation is an abuse of the CRA process. But it’s even worse than that.

Under current rules, all Internet companies are under reasonably equal regulatory obligations at both the FCC and the Federal Trade Commission (FTC). But a net neutrality CRA would create an unequal playing field, tilted illogically to the biggest tech companies most likely to abuse their positions.

That’s because the Obama federal regulatory takeover of the Internet oddly did not apply to the big “edge” companies and social media platforms that today collect enormous amounts of personal information and engage in viewpoint discrimination, forcing their Silicon Valley cultural biases onto the country through the power of their platforms. Rolling back that Obama-era absurdity has restored an equal regulatory playing field, but a net neutrality CRA would put the big edge companies back in the catbird’s seat.

These companies have innovated their way to tremendous market power, and we shouldn’t deny them their success. But neither should we give them a free pass, especially given what we’re learning about the kind of left-wing cultural and political bias that exists in these companies. The same mentality that is shutting down free speech on college campuses predominates within these companies. If they won’t tolerate opinions they disagree with, how likely are they to be neutral arbiters of blog entries, social media posts, user-generated video and other kinds of content?

A net neutrality CRA would do nothing to curb these abuses — in fact, it would encourage them by exempting edge companies from regulation and instead punishing their competitors.

And by returning to a rear view mirror approach that reaches back to a Depression-era land-line “common carrier” framework, the CRA would also undermine the internet’s innovation culture and put thousands of jobs at risk by drying up new capital and slowing network improvement and expansion.

Ultimately, the CRA won’t likely pass a Republican-led Congress and be implemented by a presidential signature. For Democrats, this strategy is more about grandstanding, building email lists and pushing breathless, clickbait tweets. Ultimately, it’s about keeping activists ginned up about net neutrality so everyone can keep raising money off of the faux outrage that results.

If Democrats are serious about protecting consumers from possible abuses that would interfere with their Internet experience, they should work on comprehensive legislation to do so — covering both Internet providers and the larger, more profitable tech companies — instead of this divisive, half-measure CRA.

After all, policy should be set by the elected representatives of the people, not by unelected bureaucrats.

Republicans also support a free and open Internet. That’s why Republicans have an opportunity to flip the script on Democrats and show voters once and for all who is serious about protecting the Internet.

Republicans should drop a simple and elegant bill — one that bars all Internet players from interfering with or censoring the online experience of all Americans. Then let Democrats explain why they don’t support such a simple approach.

Or, even better, they might see the light and join Republicans in solving the net neutrality debate once and for all with a simple, clear piece of legislation. That’s how it’s supposed to be done, anyway.


 

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