Eakinomics: The
Internet Is Still Not Broken
Over the years Eakinomics, in particular, and AAF, in general, has spilled
a lot of ink over the general issue
of net neutrality and the internet's regulation by the Federal Communications
Commission (FCC). The most damaging of these regulations was the so-called
Open Internet Order during the Obama Administration, which sought to “save”
the internet by classifying broadband services as the equivalent of a 1930s
phone call and regulating it to a standstill.
Under Chairman Pai, the FCC issued in 2018 the Restoring Internet Freedom
(RIF) Order, which restored the light-touch
regulatory approach under Title I of the Communications Act that
has prevailed for essentially all of the history of the internet and is
responsible for the tradition of dramatic innovation and its ability to withstand the demands placed on
it by the COVID-19 pandemic. The net neutrality cult bewailed the imminent
failure of the internet (wrong) and...sued.
The courts largely upheld RIF but remanded three specifics to the FCC for
further consideration—namely, the effect of that Order on: (1) public
safety; (2) the regulation of pole attachments; and (3) universal service
support for low-income consumers through the Lifeline program. Yesterday
the FCC buttoned up its policy by issuing the RIF Order on
Remand. Specifically, the FCC found (in its words) that:
- The Restoring Internet Freedom
Order promotes public safety, facilitates broadband
infrastructure deployment, and allows the Commission to continue to
provide Lifeline support for broadband Internet access service.
- The light-touch approach
adopted by the Commission and the regulatory certainty provided by
the Restoring
Internet Freedom Order benefit public safety and
further the Commission’s charge of promoting “safety of life and
property” and the national defense though the use of wire and radio
communications.
- Neither the Commission’s
decision to return broadband Internet access service to its long-
standing classification as an information service, nor its decision to
eliminate the Internet conduct rules, is likely to adversely impact
public safety.
- The benefits of returning
to the light-touch information service classification adopted in
the Restoring
Internet Freedom Order far outweigh the limited
potential negative effects resulting from the loss of section 224 pole
attachment rights for broadband-only Internet Service Providers.
- The Commission has legal
authority under section 254(e) of the Communications Act to provide
Lifeline support to eligible telecommunications carriers that provide
broadband service over broadband-capable networks that are also used
for voice service.
Hopefully, government intrusion into the internet is over and a
light-touch regulatory framework will remain in place in the future as we
continue down the path to 5G. Again and again, the litigation surrounding
FCC and the internet is not about the substance of the regulation, but
instead on whether the FCC has the authority to issue those rules. Congress
should remove all doubt and cement the light-touch framework in statute.
Unfortunately, there is no guarantee unless Congress acts.
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