Thursday, March, 25, 2010
W. Kenneth Ferree (The Progress & Freedom Foundation) assesses the FCC's authority to engage in such far-reaching regulation
PLI: More fundamentally, is there any public policy reason for the FCC
now to be meddling with something as wildly successful as
broadband Internet services?
W. KENNETH FERREE: There is no evidence of a market failure in the
- There has been no significant discriminatory ISP blocking of
subscriber access to Internet content or applications, and on the rare
occasions that it has occurred, it has swiftly been remedied in the
- The FCC is — as charged by Congress — in the midst of
developing a national broadband plan. Establishing rules regarding
the usage and management of networks in advance of that plan is
There are significant risks associated with regulatory intervention in
technologically dynamic markets.
- The proposed rules may actually discourage investment and inhibit
the development of new networks. If large Internet Service
Providers are not going to invest in new infrastructure, who will?
- Markets and technologies move faster than bureaucrats. No
matter how capable and impartial the regulator, there is no single
now, and certainly not looking forward, that captures all reasonable
network management practices. Worse there is no reason to believe
that the regulator will not be subject to political manipulation.
- As my Colleagues Adam Thierer and Berin Szoka have pointed out,
there is an aspect of "mutually assured destruction" to government
regulation of the Internet infrastructure. The FCC's assertion that this
proceeding involves only neutrality at the infrastructure layer
of the Net rings hollow; hints of regulatory creep already are
- The implications of broad government regulation of the Internet
at multiple levels are troubling. As Google Chief Executive Eric
Schmidt has noted: "It is possible for the government to screw the
Internet up, big time." Mistakes made in the competitive marketplace
can be quickly identified and remedied; regulatory mistakes can last a
The FCC has, for reasons shrouded in the mists of Washington politics,
overreached in its Notice proposing to establish new rules
limiting what Internet Service Providers can, and cannot, do. Its
authority to adopt rules in this area is severely constrained —
if it has any at all — and its decision to regulate in this area is
unwarranted and risky.
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