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Saturday, July 26, 2008

Our First Net Neutrality Law: Congrats to our Big Gov't Opponents
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It is a difficult thing for me to say, but I am man enough to do it: I must congratulate our intellectual opponents on their amazing victory in the battle to impose Net neutrality regulations on the Internet. With the Wall Street Journal reporting last night that the FCC is on the verge of acting against Comcast based on the agency's amorphous Net neutrality principles, it is now clear that the folks at the Free Press, Public Knowledge, and the many other advocates of comprehensive Internet regulation have succeeded in convincing a Republican-led FCC to get on the books what is, in essence, the nation's first Net Neutrality law. It is quite an accomplishment when you think about it.

Even though, as Jerry Brito has noted, "the FCC has no authority to enforce a non-binding policy statement," it is clear that is not about to stop the activist-minded FCC Chairman Kevin Martin or his allies on the Left from advancing the cause of arbitrary, bureaucratic governance of the Internet. And that means the "Hands Off the Net" era will gradually start giving way to the "Hands All Over the Net" era. As I told Bob Fernandez of the Philadelphia Inquirer when he called to interview me for a story about these developments:

"This is the foot in the door for big government to regulate the Internet," [...] "This is the beginning of a serious regulatory regime. For the first time, the FCC is making law around net neutrality."

And now that they have that foot in the door, I fully expect that it will be exploited for everything it's worth to grow the scope of the FCC's coercive bureaucratic authority over all things digital. The Left is salivating at the prospect of imposing their top-down vision of forced egalitarianism on the the Net, while the Right is figuring out how quickly they can exploit this to impose speech controls on anything they don't want the public to see or hear.

It is a historic moment in the history of communications and media regulation, and freedom has lost---miserably. The tentacles of the regulatory Leviathan have grown infinitely longer and a little bit more of the Net's freedom died today. And, again, what's most amazing about this is that we have a Republican FCC to thank for that. So much for the GOP being for smaller government.

posted by Adam Thierer @ 10:28 AM | Internet Governance , Net Neutrality

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(cross-posting my comment on your cross-posted post)

And Adam, I congratulate you on a fine piece of rhetoric. I am almost swayed to your way of thinking. Almost.

The problem with your reasoning on this issue is that it is characteristically simplistic. Characteristic, that is, of a flavor of libertarianism that is focused so narrowly on government regulation that it develops willful blindness to regulation from other sources. The "regulatory Leviathan" sprouts tentacles not just via bureaucrats and legal code, but via "market" actors as well.

As I noted here, your intellectual hero Ithiel de Sola Pool recognized this fact. In the case of cable he explicitly supported common carrier regulation in order to preserve it as a "technology of freedom." Elsewhere, he refers to "the libertarian features of the common carrier system."

How could such a revered thinker align regulatory intervention with libertarian principles? The answer is that Pool did not fall prey to narrow-minded categorizations of what was or was not "regulation." He recognized that market-motivated firms could regulate communication and commerce.

Furthermore, no matter what Bruce Owen thinks, the current nondiscriminatory safeguards being advocated in the name of net neutrality are far less imposing than the full common carriage regime.

The 1979 decision FCC v. Midwest Video Corp. was directly discussed in this current docket. You may recall that this was the decision that said that the Commission did not have jurisdiction to impose common carriage on cable because cable was a "broadcast" service. Whether or not this finding was consistent with the "blue sky" rhetoric which won cable its deregulated position to begin with, is another matter.

Ultimately we must ask whether there is any role whatsoever for government in ensuring free speech and free markets in the presence of gatekeepers. Otherwise, libertarianism is just a euphemism for anarchy.

Posted by: Steve Schultze at July 26, 2008 2:28 PM

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