Liberty Expose: Reforming Net Neutrality

In the run-up to the 2020 election, House Democrats are hoping to revitalize the debate around net neutrality, which was struck down by Trump Administration’s FCC and approved during the Republican-controlled Congress, by passing a bill to bring the Obama-era guidelines back into practice. While the bill is expected to die on arrival in the Senate, Democrats could benefit greatly from the debate. The public outrage over net neutrality regulations being repealed was intense. The repeal sparked concerns that the Trump administration was going to end free speech on the internet, and just like with the Article 13 bill in the European Union, decimate the internet as we know it. As of right now, however,  we have not really experienced any negative effects resulting from the ruination of net neutrality. So, should Congress reinstate these rules, reform net neutrality, or just let it die? Ultimately, while net neutrality is good policy in many aspects, it requires reform to spur innovation that is badly needed.

The modern era of net neutrality started under the Bush 43 presidency’s FCC, led by Michael K. Powell. This brand of net neutrality rested on the four freedoms that all consumers are entitled to the freedom to access [legal] content; freedom to use applications of their own choosing; freedom to attach personal devices; and finally, freedom to obtain service plan information. This last freedom runs backward of the Obama era guidelines as it allowed consumers to choose the service plan that they wanted with varying degrees of data and speed. In regards to speed, this is what is known as “throttling” which is when ISP providers (AT&T, Verizon, etc.) charge you extra to access content without as much wait time. Indeed, this became one of the main talking points that proponents of net neutrality used when the Trump administration’s FCC moved to overturn the guidelines.

Before the FCC decided to overturn the 2015 rules in 2018, net neutrality was widely popular among Americans. According to polls, 8 in 10 Americans were cited to approve the guidelines that prevented internet services from throttling users. Even Republican voters agree that ISP providers should not be able to charge “web companies fees to transfer their information more quickly.” This is a far cry from what Republicans in Congress believe as all but three GOP Senators voted in favor of repealing the guidelines. The only Republican Senators who voted against the repeal were Susan Collins (ME), Lisa Murkowski (AK), and John Kennedy (LA), the first two have long been the wild cards for the GOP. Among digital tech giants, like Youtube, Wikipedia, and other platforms joined the chorus of outrage that such a move would ruin the internet, similar to the protests over Article 13 and 11 that I wrote about a few weeks ago. Tech giants view net neutrality as vital to keep their websites afloat. If people cannot access content with reliable speeds, then they will not show up which would result in lost revenue.

The other main complaint that proponents of net neutrality use to defend the guidelines is that without it, freedom of speech is being threatened. If a company like Verizon implemented a charge to access social media sites at fast speeds, then this supposedly suppresses the consumers right of expression. First off, this is wholly incorrect and shows that opponents of the Trump administration’s move on the policy have a lack of understanding of what the U.S. Constitution covers. At its core, the Constitution is to protect the public and its rights from state actions that would abuse these rights. Companies, however, are in no way obligated to adhere to such strict interpretation, but it is in their ultimate self-interest to promote such ideals.

While net neutrality was a good policy, for the most part, there are some areas that need improvement. If Republicans want to push for a more free-market based system, they should look at the proposal by Robert E. Litan and Hal J. Singer from the Brookings Institution, a non-partisan public policy organization in Washington DC. Litan and Singer’s plan for ISP management is similar to the “Google-Verizon” framework which has four main points: “bolster the FCC’s authority to enforce its open-Internet principles based on Congressional authority; establish the concept of a case-by-case approach; forbid the FCC from promulgating detailed rules on the kind of conduct that is permitted; and, immunize wireless ISPs from any net neutrality requirements.” The main difference between the two proposals is that the Google-Verizon framework would prohibit enhanced service offerings, only if an ISP provider “could prove that it was not discriminating”, while Litan and Singer suggest that the burden should be on the content provider and that these companies should negotiate with ISP providers to establish a positive price for enhanced services providers. While the thought of paying extra for faster internet is not attractive to consumers, it might be the only feasible way to spur innovation in this sector of the market.

Furthermore, if the government wanted to prevent throttling, the FCC is not needed to prevent such an action, according to the R Street Institute, a libertarian-oriented think tank. Instead, the Federal Trade Commission is best situated to crack down on ISP providers that throttle users on unlimited data plans, as was the case with AT&T which did exactly that and was prosecuted for shady business practices. To solidify this argument is the battle between Verizon and the Santa Clara Fire Department where the ISP provider throttled the latter after the data cap was met. Under net neutrality guidelines, Verizon’s actions were found to not be in violation; however, it would have been in violation of Section 5 of the FTC Act which demonstrates that the FCC’s role on this issue is unnecessary.

In sum, net neutrality regulations have proven to be a contentious issue that the vast majority of Americans support. Voters on both sides of the political aisle fear that without these guidelines, ISP providers will be suppressing freedom of speech and stifling user-created content by requiring consumers and tech companies to pay more to access faster speeds. While this concern is understandable, net neutrality is flawed in that it stands in the way of ISP innovation and the FCC is not needed to prevent price gouging. This is a battle that conservatives and libertarians can and must unite on to achieve reform that will ultimately benefit society, but first, Republican policymakers must do a better job at convincing the American people before taking action.