How Congress Can Keep the Internet Open and Innovator-Friendly

In December 2017, the Federal Communications Commission (FCC) passed the Restoring Internet Freedom Order to rescind the 2015 FCC order that heavily regulated Internet services, the so-called net neutrality regulations. Sometime soon, perhaps even today, the United States Senate is likely to vote on Senate Joint Resolution 52, which would attempt to halt the 2017 deregulation. The resolution would also have to be passed by the House of Representatives and signed by the President in order to take effect.

Even if the measure fails, however, Congress might be tempted to prevent sweeping Internet regulations from coming and going depending on the whims of future FCC Chairpersons.

A Republican Congress and President Bill Clinton passed a law in 1996 announcing a US policy that the Internet and Internet services should be “unfettered by Federal or State regulation.” That policy has served Americans well and made America the global leader in technology investment and the app economy. If Congress feels that it must say something about net neutrality, the Federal Trade Commission (FTC) is better situated to prevent anticompetitive or anticonsumer practices online.

Why the FTC Should Oversee the Internet

1. The FTC has deep tech expertise, as then-acting FTC chief technologist Neil Chilson pointed out, and is the US’s primary online data and privacy regulator. Further, in their 2007 staff report on net neutrality, the FTC demonstrated its willingness to apply sound regulatory best practices, like identifying competitive failures and considering trade-offs between competitive pressures and FTC enforcement.

2. The FCC’s structure and history as a media and content regulator will threaten a free and open internet over time. As the FCC’s “Fairness Doctrine” revealed, advocates will weaponize vague regulations like net neutrality norms and use FCC regulatory mechanisms to silence political opponents.

3. The FCC’s approach to regulating the Internet would stifle innovation by discouraging companies from providing new services without receiving regulatory approval upfront.

No one opposes an open, free, and innovative Internet. The question is how to achieve that. The answer is continuing the US policy of promoting an Internet “unfettered” by intrusive federal regulation, but overseen by the competition and consumer protection attorneys at the Federal Trade Commission. FCC-style regulations would invite infringements on free speech and agency capture by industry.