Critics Unload on FCC Broadband Regime, Cite Dangers to Edge, Speech, Freedom

TechFreedom President Berin Szoka voiced “deep and bitter pessimism” about the current debate. “We have lost and lost terribly because the concept of freedom has been appropriated by the other side,” he said. The term “net neutrality” is a big part of the problem, he said: “Radical leftists" used “amorphous net neutrality” to “obscure a wonky subject” and reclassify broadband Internet access service under Title II of the Communications Act. He suggested the tide could turn if the right could emulate its success in pressing “school choice” in education, but “as long as the debate is framed as being about net neutrality, we will lose every single time.”

“Berin’s absolutely right: We have lost. But does that mean we’ve lost forever?” asked McDowell, urging FCC opponents to keep fighting. The "geeky" issues may cause eyes “to glaze over,” but they affect the “dominant communications system” of our time, the Internet, he said: “Do you want more government control of it or less?” Net neutrality is “an empty vessel” that Russian President Vladimir Putin, the Chinese government, and even Western democracies are using to justify Internet regulation, he said. "The left is very involved. We’re not.”

FCC Commissioner Mike O’Rielly said agency critics hadn't lost the debate forever: “Absolutely not,” they have just gotten “sidetracked” in the short term. He voiced confidence his side would prevail and the FCC order would “fail,” one way or another, whether in the courts, Congress, the commission itself or because of technological change: “We will succeed eventually.”

Citing "crony capitalism," McDowell said Internet companies pressed the FCC to favor their business plan. Edge providers move lots of digital bits and want “free” access to broadband consumers under Title II regulation crafted for phone monopolies, he said. But the regime could actually hurt small edge providers and favor large ones that can leverage their size and content to get volume discounts allowed under Title II, he said. Consumers were the losers, investment “is drying up,” and even large edge companies could gradually be brought under FCC control, he said, citing its “tortured" Internet distinctions. It's "like a frog being boiled."

Unless reversed, the rules targeting broadband providers will “bleed” over to edge/tech companies because of “blurring" lines and the natural impulse of regulators to expand their mission, O’Rielly said. He said the FCC wants to regulate application providers and will keep pushing to see how far it can go “absent direction from Congress.” The commission is going down a “rabbit hole,” rendering statutory text “meaningless,” to be interpreted “as the agency sees fit,” he said, calling that “extremely problematic” for “the rule of law.”

Szoka said the FCC was subjecting broadband to open-ended standards, and for a reason. "The more discretion the government has, the less clear the laws are, the more politicized everything is, the more leverage they have to get companies to do what they want,” he said. By asserting Title II broadband jurisdiction, the FCC can regulate privacy, interconnection and other Internet matters, he said: “If they can regulate all that, they have stuff to give away and stuff to take back, and that gives them power.” The Communications Act should be rewritten by Congress to erase the different titles and regulate Internet services “in a sensible way,” he said.

All three speakers voiced concern that free speech could be harmed under the FCC’s broadband regime. McDowell warned against being “seduced” by arguments for regulating Internet speech under the “guise of fairness or neutrality.” He said such regulation effectively could bring back the fairness doctrine, which required broadcasters to air opposing viewpoints. Szoka said the fairness doctrine sounded neutral, but effectively barred talk radio through “architectural censorship.” O’Rielly said FCC Chairman Tom Wheeler “rightfully” had told a lawmaker at a House hearing that the agency couldn’t intervene in Internet company policy decisions regarding policy brutality, crime and gun controversies. But he said Wheeler promised to call Facebook CEO Mark Zuckerberg to express his personal views about the gun issue, which O’Rielly called "pressure" that "was not lost on people."

Szoka said the FCC could influence Internet speech through “soft” controls. If an Internet company has a business model subject to FCC regulation and “you get a call from the chairman and he says stop showing ads for guns or whatever, you’re going to do it,” Szoka said. “It’s not a direct form of censorship; it’s the wink and the nudge and the raised eyebrow. That’s how China censors the Internet and we should be very disturbed by it. The FCC is inherently a censorship commission. That’s what it does. Why would you trust that agency over the organs of speech when you have another agency, the Federal Trade Commission that, whatever its flaws, at least has standards that limit its discretion … and isn’t so prone to being politicized and captured.”

McDowell said the hard left always sought to control speech first, whether it was the Sandinistas in Nicaragua, the Castros in Cuba, Hugo Chavez in Venezuela, or Vladimir Lenin in the Soviet Union. He said they used to go after newspapers and broadcast stations, “and now it’s the Internet.” He said Putin wants to regulate the Internet through the ITU. He cited three quotations as a warning: Ben Franklin said, “Whoever would overthrow the liberty of a nation, must begin by subduing the freeness of speech”; George Washington said, “If the freedom of speech is taken away, then dumb and silent we may be led like sheep to the slaughter”; and Lenin said, “When one makes a revolution, one cannot mark time, one must always go forward or go back. He who now talks about the freedom of the press goes backwards and halts our headlong course toward socialism.”

FCC merger reviews “had become a totally lawless form of regulation,” Szoka said. “Companies do whatever the agency wants -- whatever that might be, even if it’s something the agency couldn’t legally require, and that might even be unconstitutional -- just because they need to get their deal through.” And now the FCC “has a total blank check” to regulate Internet companies through Title II broadband, he said.

Szoka said Wheeler was ignoring internal FCC controls and fellow commissioners. “This particular chairman doesn’t want to bother with any of that stuff. He just wants to run everything like he’s the only person there. He’s famously said: ‘I, am, the, independent, agency.’ … It's like -- it's the Sun King. That’s what we’ve come to. And it’s only going to get worse. So the kind of things you see now from Donald Trump and his sort of approach are really just a continuation of the worst aspects of the Obama administration."