Destroying the Dynamic Internet

[Commentary] During the week of August 3, a diverse collection of engineers, economists, civil rights organizations, manufacturers, businesses and legal scholars filed briefs with the Washington (DC) Court of Appeals arguing why the Internet should not be subject to the Federal Communications Commission's new open Internet rules – regulations copy-pasted from the telephone network of the 1930s. The briefs highlighted several arguments against the FCC's decision, including the negative impact on the future of health care and education, First Amendment violations and how the new rules harm digitally underserved and unserved communities.

All told, a broad cross section of Americans told the court that the unelected agency's misguided decision will diminish America's world-class Internet, unless it's overturned. This case represents the FCC's third time in court for attempting to make network neutrality rules. While the FCC may be optimistic about the outcome, the experience from other countries suggests that activist telecom regulators have a difficult time in court. Net neutrality lawsuits are pending against regulators in Canada and Slovenia. After five years of litigation in Chile, it took legislation to vest the proper authority within the telecom regulator to enforce net neutrality rules. Wanting to avoid such a situation, the European Union took 18 months to get buy-in from all branches of government, ultimately creating rules that likely have more staying power. The FCC, on the other hand, forged ahead on its own and with the suspicious and unprecedented intervention of President Barack Obama. Perhaps with its many fallacies and inconsistencies exposed in the court, the FCC will finally work with Congress on a legislative solution. Judging from past experiences in the US and abroad, this is the best way to permanently protect net neutrality while preventing the dynamic Internet from turning into a utility.

[Roslyn Layton is a visiting fellow at the American Enterprise Institute]