FCC’s net neutrality plan is another step in the regulation of speech

So the latest development on the speech regulation front is Federal Communications Commission (FCC) Chairman Tom Wheeler’s rumored plan to create a “hybrid” regulatory structure in the name of “net neutrality,” the condition which, as it happens, has already been attained.

Under Wheeler’s plan, Internet regulation would be split between a highly regulated back end, where content providers deal with Internet service providers (ISPs), and a more lightly regulated front end, where consumers get their content from ISPs. This, so it’s said, is a way to get around the decision of a federal appeals court that invalidated an earlier FCC attempt to institute net neutrality regulations.

So it is that net neutrality has gone from what Bob Kahn, the inventor of the Transmission Control Protocol, has called a “slogan,” to what Scott Cleland derides as an industrial policy benefitting Silicon Valley at the expense of consumers.

{mosads}Those who have a sense of history, and a wider angle of vision on the policy process, may be struck by something else. The FCC’s plan, coming at the very time that the Federal Election Commission is looking for ways to regulate political speech on the Internet, the Justice Department is spying on journalists and the National Security Agency (NSA) is intercepting citizens’ phone calls and email, would add yet another way in which government could insert itself into the speech business.

Of course, none of the net neutrality advocates are calling for anything like that, but that’s always the way with unintended consequences, and it doesn’t take much imagination to see how such rules could be misused to that end. It’s really a pretty simple recipe: Add a cup of precedent to the right mix of FCC commissioners (it only takes three), and you have all that would be required to quash or chill prospective deals between ISPs and the “wrong kind” of content providers.

In addition to much of Silicon Valley, net neutrality is favored by many progressive activists, led by groups such as Free Press (“Net neutrality: The First Amendment of the Internet”) and enabled by contributions from some of the country’s largest grant-giving foundations.

The extent to which such foundations are committed to the net neutrality cause can be seen in a notice of ex parte communication filed with the FCC on June 12 by the Ford Foundation. According to the notice, on June 10, the presidents of the Ford Foundation and the Knight Foundation, in company with program officers from such institutions as the MacArthur Foundation, Media Democracy Fund and George Soros’s Open Society Foundations (ideological birds of a feather, all) met with FCC Chairman Wheeler to talk about net neutrality:

“The participants discussed the importance of Net Neutrality and the pros and cons of the various approaches including section 706 and Title II. … As this evolving technology continues to reshape the world and the way we interact, strong Net Neutrality protection would promote free expression, economic opportunity, and civic engagement for the foreseeable future.”

Confronted with such hortatory rhetoric, one could wonder how the Internet in the U.S. has evolved so far and so fast without codified net neutrality rules, but that inconvenient fact doesn’t appear to trouble the net neutrality legions at all. Nor does the likelihood of “regulatory capture,” as so many progressives worry about with other industries.

On the 30th anniversary of the publication of Ithiel de Sola Pool’s masterwork, Technologies of Freedom, Adam Thierer wrote a piece in techliberation.com that concluded with this towering and timely paragraph from the book:

“The easy access, low cost, and distributed intelligence of modern means of communication are a prime reason for hope. The economic impulse to regulate evils, as Tocqueville warned, is ironically a reason for worry. Lack of technological grasp by policy makers and their propensity to solve problems… by accustomed bureaucratic routines are the main reasons for concern. But as long as the First Amendment stands, backed by courts which take it seriously, the loss of liberty is not foreordained. The commitment of American culture to pluralism and individual rights is reason for optimism, as is the pliancy and profusion of electronic technology.”

Maines is president of the Media Institute, a nonprofit think tank supported by media and telecommunications companies, which promotes free speech, sound communications policies, and excellence in journalism.