May 23, 2017 at 5:00 am ET
The battle over whether and how government should regulate the internet is once again coming to the fore. The Federal Communications Commission currently is weighing proposed rules designed to answer how it (and perhaps the Federal Trade Commission, as well) should protect consumers and promote fair competition on the internet going forward.
If this sounds eerily familiar, that’s probably because we’ve been through all of this before—multiple times, in fact.
Three years ago, after key portions of its 2010 Open Internet Order were struck down by the D.C. Circuit, the FCC deliberated, took public comment and crafted the 2015 Open Internet Order. In many respects, the 2015 order and the 2010 order were identical. The 2015 order expanded the rules slightly, but both were based on the same rationale and both targeted the same sorts of conduct—namely, unfair discrimination by internet service providers.
We’re now at a point where Republicans and Democrats alike—and even most ISPs—openly support the principles of net neutrality. The remaining questions largely are ones of implementation: What should the rules look like? Who should enforce them? On what authority should they be based?
There is room for healthy debate on all these questions and members of the general public should be encouraged to weigh in and voice their opinions. However, before doing so, it’s useful to know this particular fight’s origin story, because it stretches back further than one might think.
The battle over net neutrality can be traced back to the FCC’s “Computer Inquiries” from the 1970s and 80s. At the time, the agency was faced with the prospect of technological convergence between telecommunications and various forms of computer processing. Advances in computing and electronics led to innovative new products and services that could work with Ma Bell’s network to provide enhanced consumer benefits beyond the basic transmission services (namely, telephone and telegram) historically governed under Title II of the Communications Act.
Ma Bell, of course, attempted to use its monopoly over telecom services to control these adjacent products and services, all of which required access to the telecom network in order to reach consumers. The FCC, recognizing that this monopolistic behavior was hampering innovative new product and service offerings, adopted several regulations designed to promote open and fair competition in these new areas. The new “enhanced services” were to be regulated under Title I of the Communications Act, while Ma Bell’s telecom monopoly was kept intact.
With the FCC’s Computer Inquiries, along with the emergence of innovative products like the Hush-A-Phone and Carterfone, the principle emerged that consumers and entrepreneurs are free to attach their own devices to use Ma Bell’s network any way they want, so long as it doesn’t harm the network itself. Network operators were allowed to offer enhanced services, too, but they were forbidden from using their control over the network to favor their own services over competitive service offerings. These regulations are the logical precursor to the net neutrality regulations of the 21st century. Indeed, the FCC’s first attempt at net neutrality—a 2004 policy statement—espoused “four internet freedoms” that mapped directly onto the FCC’s open-access and nondiscrimination requirements from the Computer Inquiries.
So, if net neutrality is really just a rehash of the FCC’s Computer Inquiries, and most everyone agrees on the basic need for some regulations to protect open and fair competition among services on the internet, why are we still having this fight?
Both sides of the net neutrality debate can point the finger of blame at someone else. Some criticize Verizon for challenging the 2010 order, which many considered a valid compromise. For its part, Verizon had its own compromise legislative proposal shot down months earlier, so they were understandably a bit salty at the time.
But, really, we’re all to blame. Those who cannot remember the past are condemned to repeat it. Here we are, fighting and protesting over a policy battle that was long ago settled, and which shouldn’t be controversial. If everyone can just wake up and acknowledge how much widespread agreement there is on basic net neutrality principles, maybe Congress will finally get its act together and pass legislation that resolves the issue once and for all.
Tom Struble is a technology policy manager with the R Street Institute.
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