Net neutrality 10 years later: a still unconvinced commissioner.

• Author: Tate, Deborah T.
• Position: FCC Commissioner

Table of Contents I. Introduction II. Telecom Regulation and the Role of Government III. A Commissioner's Experience with Net Neutrality IV. Net Neutrality is Not a Silver Bullet V. The Democratization of Commerce VI. Net Neutrality's Tenth Anniversary VII. Conclusion "Some men see things as they are and say, 'Why?' ... I dream things that never were and say, 'Why not?'"

--Robert F. Kennedy, 1966 (1)

1. Introduction

   From the moment I first heard the words "net neutrality," I marveled at the absolute brilliance of coining such a phrase (2)--one that evokes such a democratic, neutral value proposition, yet threatens disastrous results for our economy. Interestingly, although net neutrality seemingly endorses the free and open nature of the Internet ecosystem, (3) its impact would actually be burdensome and onerous. In fact, this so-called net neutrality goes directly against most American consumers' values, such as competition, freedom of choice, and less government regulation.

   At the end of the FCC's first and only investigation on the subject, which involved the slowing of BitTorrent traffic by Comcast, (4) I suggested that we change the dialogue to be much more concerned about whether the Internet is "safe and secure." (5) Those fears have, sadly, come to fruition, as illustrated by recent data breaches afflicting the National Security Agency, (6) the Internal Revenue Service, (7) and the Target Corporation, (8) among many others. Nevertheless, net neutrality seems to still hold the attention of policymakers in Washington, D.C. (9)

   The FCC in 2005 issued a seemingly benign "Internet policy statement" (10) under former Chairman Kevin Martin. Then, in 2010, the FCC plowed forward with a newly expanded list of "net neutrality principles." (11) Both forays into regulation of the Internet were held to exceed the legal authority of the FCC by the U.S. Court of Appeals for the D.C. Circuit. (12)

   Many scholars have discussed the regulatory and legal history of the latest ruling by the D.C. Circuit in Verizon v. FCC. (13) As a former FCC Commissioner, I would be remiss to minimize the longstanding legal principle of Chevron deference that the judiciary affords federal expert agencies such as the FCC. (14) At the same time, I believe it is equally important that the FCC--indeed, any agency or arm of our government-- acts completely within its legal authority. (15)

   In Verizon, the FCC defended its net neutrality rules as a permissible exercise of the Commission's "ancillary jurisdiction," which supposedly emerged from a tapestry of other authorities within the broader Communications Act. (16) The FCC also relied on its authority under section 706 of the Telecommunications Act, (17) which tasks the FCC with encouraging the "deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans" by using, among other tools, "regulating methods that remove barriers to infrastructure investment." (18) Although the Verizon court recognized section 706 as a standalone fount of regulatory authority for the FCC, (19) the court nonetheless vacated the net neutrality rules' core provisions on the grounds that they impermissibly imposed common carriage status on fixed broadband providers. (20)

   Despite its duo of losses, the FCC is now developing a third version of net neutrality rules. (21) I cannot imagine it manages to find the authority to promulgate similar rules this time around. As a skeptic of net neutrality regulation, I believe this outcome will be for the best.

2. Telecom Regulation and the Role of Government

   Whenever the government acts, interestingly, it is often in reaction to a real or perceived problem that, if left unattended or unregulated, might cause harm. (22) New regulations often emerge after a specific incident, perhaps involving toxic substances, dangerous medications, tainted food, or misleading product advertisements. (23) Where perceived risk exists, government officials worry about political liability of they do nothing; to avert this prospect, they frequently resort to regulation. (24)

   The resulting government is far larger than that envisioned by the founding fathers, who established the United States as a constitutionally limited government. (25) Today, the founders would probably struggle to recognize the nation's capital, which houses vast bureaucracies that span the city and sprawl into the surrounding states, and employs millions of federal workers and contractors. (26) As the Chief Justice of the United States recently observed, the "administrative state wields vast power and touches almost every aspect of daily life." (27) Indeed, the "overreach" of these federal agencies has never been more apparent, as demonstrated by the recent spate of congressional investigations of agencies acting outside their legal authority. (28)

   One such agency is the Federal Communications Commission ("FCC"), which Congress tasked with overseeing a sector that accounts for approximately one-sixth of nation's economy. (29) Created, in part, as a response to the sinking of the RMS Titanic, (30) to coordinate domestic and international radio communications, the FCC eventually took on a broad role in the telecommunications and media sectors. (31) Approving new gadgets--now devices--and negotiating with global players in the satellite sector further broadened the FCC's purview. (32) Yet, in my experience, most citizens have no idea how far the FCC's reach extends. Instead, many Americans think the Commission watches television all day in hopes of keeping "wardrobe malfunctions" and dirty words off the airwaves.

   Whenever I speak to a civic club, I often explain the FCC's breadth by depicting a day in the life of an ordinary American. From the moment you turn on the news, open your garage door, use your remote control, switch radio stations, and listen to SiriusXM on your drive to work, you have probably spent more time with the FCC than your family. Much of the FCC's work aims to ensure all of these technologies operate so that consumers have the best possible experience, unimpeded by interference. (33)

   To be sure, preconceptions of the FCC's activities are not uncommon. Some people relate to the FCC as the federal overseer of our nation's emergency response systems, such as (911). (34) Others are familiar with the FCC's placement of satellites for global telecommunications. (35) Some even relate to the Commission's role in national security. (36) And many parents whose children attend public schools have heard of the E-Rate program, which has connected almost every public school and library across this vast nation to the Internet. (37)

   I am quite honored to have had the opportunity to serve the American people at the FCC, especially to the extent that our work saved lives and enhanced economic investment in the next dazzling innovation. However, in a few instances during my tenure, the FCC ventured outside of its legal bounds. The issue of net neutrality was--and is--one such instance.

3. A Commissioner's Experience with Net Neutrality

   As one of the two original Commissioners to take issue with the entire premise of net neutrality, (38) I could never quite fathom that we were spending countless man-hours at the FCC on it, holding public "hearings" around the country and attempting to create regulations out of whole cloth--all basically because of one lone complaint regarding an ISP that had slowed down some consumers' Internet speeds. (39)

   Similarly, in the second complaint--which involved the degradation, rather than the blocking, of Internet traffic (40)--broadband provider Comcast voluntarily resolved the issue and promised the FCC it would not happen again. (41) As my former colleague and FCC Commissioner Robert McDowell argued in his dissent from the Open Internet Order, "in the almost nine years since those fears were first sewn, net regulation lobbyists can point to fewer than a handful of cases of alleged misconduct, out of an infinite number of Internet communications. All of those cases were resolved in favor of consumers under current law." (42)

   Indeed, while the FCC has found that ninety-four percent of households have access to fixed broadband Internet, meeting the Commission's speed benchmark, (43) the aforementioned formal complaints were the only two filed with the FCC alleging discrimination by a broadband provider. Juxtaposed against those two complaints are the (1). (5) million indecency complaints (44)--many of which are still pending (45)--and many other consumer complaints clearly within the legal authority of the Commission, all of which remain unaddressed.

   Informally designated "the Children's Commissioner" (46) during my time at the FCC, I was and continue to be outspoken on issues regarding illegal online activities, such as child pornography and online predatory behavior targeting minors. In addition, as a Music City native, I often speak about the harms caused by online infringement of intellectual property rights. These problems hurt individuals, especially children, (47) and the music industry. (48) However, despite my ardent desire to crack down on these illegal, unethical, and economically harmful online activities, I could not embrace FCC net neutrality regulation, as it clearly exceeded the Commission's legal authority.

   My first question to attorneys and government relations officials who frequented my office on the topic was usually "what is your definition of net neutrality?" I rarely received the same response. Indeed, net neutrality has been said to be "the most discussed, least understood concept in the world of internet policy." (49) Under the FCC's conception of net neutrality, it requires broadband providers to allow their subscribers to (1) "access the lawful Internet content of their choice," (2) "run applications and use services of their choice, subject to the needs of law enforcement," and (3) "connect their choice of legal...