Waxman’s ‘hybrid’ plan would destroy Internet innovation

By Erik Telford

In a recent letter to the Federal Communications Commission, U.S. Rep. Henry Waxman , D-Calif., accurately notes that the Internet is a “great American success story,” yet bizarrely attributes the Internet’s prosperity to diligent government oversight. Nothing could be farther from the truth.

The Internet and its innovations have been possible because of its relative freedom from burdensome government regulations. Waxman’s misunderstanding is apparent in his contribution to the “net neutrality’ debate. His “hybrid” plan to first, reclassify Internet service providers as Title II “common carriers” under the Telecommunications Act of 1996, and then apply Title I’s Section 706 of the legislation, is not only legally problematic, but would have devastating consequences for Internet innovation and accessibility.

Dubbed a “hybrid” approach because it combines regulatory powers of Titles I and II, the mixture lays out a hyper-rigid regulatory structure for broadband incomparable to any other industry. The tight, inflexible government oversight Waxman proposes will certainly accomplish net neutrality along with a more intrusive, disruptive role of government in business-to-business Internet collaboration.

Waxman proposes reclassifying broadband under Title II because the category’s powers pave a direct route to achieving a very broad view of “net neutrality” — the crowning achievement in extremists’ goal to secure wide-ranging power over Internet content delivery.

While the pro-net neutrality campaign and the sections in Title II claim to protect the public from the repercussions of unfair practices in pricing and services, it is increasingly apparent that advocates of Title II reclassification simply want the authority to control the Internet for their messaging objectives — not ensure that consumers get the content they want.

But while Title II expands the FCC’s power to control content, it leaves behind a key power in Title I, Section 706, which relates to business-to-business transactions between ISPs and content providers. With the goal of promoting competition, Section 706 includes rules against blocking, throttling and paid prioritization within the market — precisely what pro-net neutrality advocates claim they seek. If that is the case, why pursue the aggressive Title II?

So, while Title II and Section 706, separately, allow companies the flexibility “to offer different classes of services at different prices, the combination of the two statutes under Congressman Waxman’s proposal would completely prohibit such offerings, creating a form of ‘super-common carriage’ that would prove more restrictive than the standards that apply to monopoly telephone providers,” according to the National Cable and Telecommunications Association.

Waxman’s hybrid planalso is a flop in that it is certain to face legal challenges, if not complete obstruction. Responding to concerns that Title II’s numerous, outdated regulations are only applicable to earlier telecom companies, Waxman’s plan proposes “Title II plus forbearance” through which the FCC can choose not to implement select sections. But the FCC will have to justify in the court of law its decisions to forbear sections of Title II. And, since, arguments to reclassifying ISPs under Title II claim to protect consumers from monopolistic practices, the FCC will have to effectively make the legal case that the sections it would like to forbear are not requisite to protect customers.

This poses a conundrum that the FCC is going to have a lot of trouble clarifying to the courts — if nearly all of the sections in Title II don’t apply, the purpose of placing ISPs into the “common carrier” category is illogical and discriminatory.

Whether Waxman has considered this legal hurdle — and quite possibly, an insurmountable barrier — is debatable, but what is clear is that the ultimate goal is to give the FCC greater authority over the Internet.

A free, lightly regulated environment has allowed Internet companies to experiment, collaborate and invest at a speed and low cost that has translated into one of the largest technological advances in history, regardless of what Waxman believes. His plan certainly will write a tragic epilogue to his fairytale. Waxman’s “hybrid” proposal is a toxic combination for the future of the Internet. If it passes through the legal hurdles, it is sure to erode the networks and structure that hasallowed for this “great American success story.”

Erik Telford is senior vice president at the Franklin Center for Government and Public Integrity.