The FCC’s Threat to Internet Freedom

The FCC’s Threat to Internet Freedom

‘Net neutrality’ sounds nice, but the
Web is working fine now. The new rules will inhibit investment, deter
innovation and create a billable-hours bonanza for lawyers.

Tomorrow morning the
Federal Communications Commission (FCC) will mark the winter solstice by taking
an unprecedented step to expand government’s reach into the Internet by
attempting to regulate its inner workings. In doing so, the agency will
circumvent Congress and disregard a recent court ruling.

How did the FCC get here?

For years, proponents of so-called
“net neutrality” have been calling for strong regulation of broadband
“on-ramps” to the Internet, like those provided by your local cable
or phone companies. Rules are needed, the argument goes, to ensure that the
Internet remains open and free, and to discourage broadband providers from
thwarting consumer demand. That sounds good if you say it fast.

David Klein

Nothing is broken that needs fixing,
however. The Internet has been open and freedom-enhancing since it was spun off
from a government research project in the early 1990s. Its nature as a diffuse
and dynamic global network of networks defies top-down authority. Ample laws to
protect consumers already exist. Furthermore, the Obama Justice Department and
the European Commission both decided this year that net-neutrality regulation
was unnecessary and might deter investment in next-generation Internet
technology and infrastructure.

Analysts and broadband
companies of all sizes have told the FCC that new rules are likely to have the
perverse effect of inhibiting capital investment, deterring innovation, raising
operating costs, and ultimately increasing consumer prices. Others maintain
that the new rules will kill jobs. By moving forward with Internet rules
anyway, the FCC is not living up to its promise of being “data
driven” in its pursuit of mandates—i.e., listening to the needs of the

It wasn’t long ago that
bipartisan and international consensus centered on insulating the Internet from
regulation. This policy was a bright hallmark of the Clinton administration,
which oversaw the Internet’s privatization. Over time, however, the call for
more Internet regulation became imbedded into a 2008 presidential campaign
promise by then-Sen. Barack Obama. So here we are.

Last year, FCC Chairman
Julius Genachowski started to fulfill this promise by proposing rules using a
legal theory from an earlier commission decision (from which I had dissented in
2008) that was under court review. So confident were they in their case, FCC
lawyers told the federal court of appeals in Washington, D.C., that their
theory gave the agency the authority to regulate broadband rates, even though
Congress has never given the FCC the power to regulate the Internet. FCC
leaders seemed caught off guard by the extent of the court’s April 6 rebuke of
the commission’s regulatory overreach.

In May, the FCC leadership
floated the idea of deeming complex and dynamic Internet services equivalent to
old-fashioned monopoly phone services, thereby triggering price-and-terms
regulations that originated in the 1880s. The announcement produced what has
become a rare event in Washington: A large, bipartisan majority of Congress
agreeing on something. More than 300 members of Congress, including 86
Democrats, contacted the FCC to implore it to stop pursuing Internet regulation
and to defer to Capitol Hill.

Facing a powerful
congressional backlash, the FCC temporarily changed tack and convened
negotiations over the summer with a select group of industry representatives
and proponents of Internet regulation. Curiously, the commission abruptly
dissolved the talks after Google and Verizon, former Internet-policy rivals,
announced their own side agreement for a legislative blueprint. Yes, the effort
to reach consensus was derailed by . . . consensus.

After a long August silence, it
appeared that the FCC would defer to Congress after all. Agency officials began
working with House Energy and Commerce Committee Chairman Henry Waxman on a
draft bill codifying network management rules. No Republican members endorsed
the measure. Later, proponents abandoned the congressional effort to regulate
the Net.

More on Technology

Still feeling quixotic
pressure to fight an imaginary problem, the FCC leadership this fall pushed a
small group of hand-picked industry players toward a “choice” between
a bad option (broad regulation already struck down in April by the D.C. federal
appeals court) or a worse option (phone monopoly-style regulation).
Experiencing more coercion than consensus or compromise, a smaller industry
group on Dec. 1 gave qualified support for the bad option. The FCC’s action
will spark a billable-hours bonanza as lawyers litigate the meaning of
“reasonable” network management for years to come. How’s that for
regulatory certainty?

To date, the FCC hasn’t
ruled out increasing its power further by using the phone monopoly laws,
directly or indirectly regulating rates someday, or expanding its reach deeper
into mobile broadband services. The most expansive regulatory regimes
frequently started out modest and innocuous before incrementally growing into
heavy-handed behemoths.

On this winter solstice, we
will witness jaw-dropping interventionist chutzpah as the FCC bypasses branches
of our government in the dogged pursuit of needless and harmful regulation. The
darkest day of the year may end up marking the beginning of a long winter’s
night for Internet freedom.

Mr. McDowell is a Republican commissioner of the Federal
Communications Commission.

Barack Obama’s FCC Information Police

Barack Obama’s FCC Information Police

By Chuck Rogér

The President warns us that Americans must beware of “the craziest claims” and “arguments” in which “information becomes a distraction” that puts “pressures” on “our democracy.” What was behind Barack Obama’s recent remarks to the graduating class of Hampton University? What “information” must Americans fear?

FCC Chief Diversity Officer Mark Lloyd foretold Obama’s meaning in a coauthored 2007 Center for American Progress (CAP) report. The report complained that 91 percent of talk radio was conservative and praised the “more balanced” programming “in markets such as New York and Chicago.” The deep blue demographics of two of the bluest American cities betray a deceitful usage of the term “more balanced.”
To further corrupt the meaning of “balance,” even after admitting that “no matter how the data is analyzed” conservative talk dominates “over and over again,” the CAP report implied that talk radio balance means half conservative, half progressive programming. This is instructive. Although twice as many Americans self-identify as conservative versus liberal, the liberal meaning of balance mutates from allotment according to real-life proportions to equal market share. Armed with any redefinitions required, FCC Chief Diversity Officer Lloyd is now in a position to rebalance political talk radio.
To understand how “balance” could be achieved, we refer again to President Obama’s warning that Hampton graduates must avoid information that becomes distracting. Precisely how can one recognize distracting information? A clue lies in the CAP report’s insistence that broadcast companies serve “the listening needs of all Americans.” The key word is “needs.” Liberals assume that people should need only the information that liberals want people to have. Other information constitutes “distraction.”
But when huge majorities of customers support existing talk radio programming, there exists only imaginary distraction. Only the most microscopic gap could exist between demand and supply. Such unpleasantness doesn’t faze progressive know-it-alls unable to accept that customers recoil from force-fed progressive talk.
Undeterred, Lloyd and the other coauthors of the 2007 CAP report recommended a force-feeding technique that requires “diversity” in radio station ownership in order to inflict repeatedly rejected progressive viewpoints on the people. As I reported last August, diversity would be achieved through three actions.
1) Legal discrimination: “caps” on the proportions of various types of people who can own stations.
2) “Greater local accountability over radio licensing.”
3) Forcing broadcasters not meeting “public interest obligations” to fund public broadcasting. Stations would have to do what liberals say or else pay to be ridiculed by liberals on competitor stations.
With fixes for talk radio “imbalance” in place, high-minded government bureaucrats would be well on the way to addressing the high consumer preference for conservative shows over progressive shows. But the high preference points out a truth that won’t go away: Emotionally healthy Americans embrace wholesome values, self-reliance, small government, traditional America, and a traditional family structure. Just more antagonistic reality to taunt progressives who seem hell-bent on imposing progressive radio on traditional Americans.
To bolster the imposition, Mark Lloyd and company didn’t stop at three recommendations. The CAP report called for the public to have a periodic say in whether licensed broadcast companies should be allowed to continue to broadcast. Such meddling would be akin to the feds controlling people’s earnings, restricting government contracts to unionized companies, ordering financial institutions to lend to specific borrowers, or giving preference to certain people for entry into jobs or schools. Decades ago, the intrusions into free markets wouldn’t have been tolerated. Today, interference is common.
Interference is about to be turbo-charged. Three years after private citizen Lloyd proposed that government force progressive radio programming into conservative markets, the FCC where Lloyd now works appears poised to consider the Diversity Czar’s force-feeding recommendations. The agency has launched “an examination of the future of media and the information needs of communities in a digital age.” Media “diversity” plays a role in “examination.” The FCC explains:
The objective of this review is to assess whether all Americans have access to vibrant, diverse sources of news and information that will enable them to enrich their lives, their communities and our democracy.
The Future of Media project will produce a report providing a clear, precise assessment of the current media landscape, analyze policy options and, as appropriate, make policy recommendations to the FCC, other government entities, and other parties.
The statement reads like a rehash of the Lloyd-and-company Center for American Progress report. In order to soothe Obama’s worries over excess “information,” after the FCC “examine[s]” the “information needs of communities,” it’s a safe bet that the agency will recommend regulating information flow into said communities. The FCC’s wording runs faithfully parallel to Obama’s wording:
The digital age is creating an information and communications renaissance.  But it is not serving all Americans and their local communities equally. It is not yet serving democracy fully.
Witness the creation of yet another contrived “right” — the right of all members of all communities to equal access to all communications media. Also, it’s impossible to ignore Obama’s and the FCC’s misleading use of the term “democracy” to depict America’s representative democratic republic. Exactly what does the “communications renaissance… serving democracy fully” mean? The FCC may have in mind the public’s participation in station licensing as proposed by Lloyd in 2007. America could be headed into a state of affairs in which popular vote determines who can operate private sector radio stations. Voters could be “nudged” in specific directions using specific government freebies funneled into specific communities.
Another factor motivating Obama administration focus on information flow is the demise of the massively liberal “dinosaur” media — mainly newspapers and broadcast TV. Stir in the downward spiral of liberal cable news outlets like MSNBC as well as the embarrassing face-plant of progressive talk radio’s Air America, and it becomes clear why Obama and the FCC are nervous. Nerves are frying over how “the layoff of thousands of journalists” might result in “fewer ‘informed communities.'” As liberal-dominated media continue to atrophy, progressive propaganda will less reliably reach communities that get progressive “helping” programs that convince voters to elect progressives to keep the help flowing.
Losing the iron grip that progressives have on “oppressed” and “disadvantaged” American voters is not something that Barack Obama can bear. Media filters must be tightened. According to the President, only certain “information” should reach the people. Perhaps soon, the noble FCC will save Americans from bad information, the information that “has become a distraction.”
A physicist and former high tech executive, Chuck Rogér invites you to visit his website, Email Chuck at