Ends vs Means – The Problem With President Obama’s Call for Net Neutrality

The internet has been buzzing with discussion of President Obama’s recent call for Net Neutrality and the contrary reaction from some Republicans like Senator Ted Cruz.net-neutrality

If you are not familiar with the term, I encourage you to read about Net Neutrality on Wikipedia. (As always with Wikipedia, it is a good idea to check out the Talk page and the change history in addition to the main article).

Personally, while I tend to favor many of the principles of Net Neutrality, I have mixed feelings and concerns.

As a customer of my Internet Service Provider, I pay for access to the Internet and expect to be able to use it to visit sites or services that interest me. I don’t want the ISP slowing down or even blocking sites that I want to visit because they have deals with competitors of those sites.

And Net Neutrality is intended to protect me from exactly that kind of thing.

And as a web developer I think that if I were to start a web company to compete with some existing web service, I would not want to be unable to compete because my well-established competitor has a special deal with Internet Service Providers that makes their service run faster and smoother than mine.

And Net Neutrality is intended to protect me from exactly that kind of abuse too.

And for those reasons I support Net Neutrality.

But the issue is complicated. It’s not as cut-and-dried as many proponents make it out to be.

Yes, some of the influential people who helped invent the Internet, like Vinton Cerf and Tim Berners-Lee, are in favor of Net Neutrality. But others, like  Bob Kahn and David Farber, oppose it. And there are some interesting arguments against regulating Net Neutrality.

And despite the fact that I agree with the ends,  I also have some serious concerns about how Net Neutrality will be achieved and what it will mean in the long run.

As I have emphasized in posts in the past, it is possible to pursue good things through bad or even wicked means. The ends do not justify the means.

So you have to consider not just the ends, but the means through which it is proposed that they be accomplished.

Senator Ted Cruz was heavily criticized and mocked for comparing President Obama’s call for Net Neutrality to “Obamacare for the Internet”. Some implied that he was in the pocket of telecommunication company lobbyists. Others assumed, instead, that he is misinformed or dumb. And it is true that his initial reaction of calling Net Neutrality “Obamacare for the Internet” was a clear oversimplification– a soundbite, not an argument.

But in a previous statement from last May, Senator Cruz also raises a valid concern regarding Net Neutrality: “Congress, not an unelected commission, should take the lead on modernizing our telecommunications laws.

This is, in fact, a serious problem with Obama’s Net Neutrality proposal. Obama is asking the FCC to unilaterally reclassify broadband Internet providers (including mobile carriers) in a way that allows the FCC to impose Net Neutrality without any new legislation.

In other words, this is another case of President Obama attempting to subvert constitutional checks and balances in order to impose sweeping changes as he sees fit. Many of those changes may be desirable, but the means by which he seeks to bring them about are subversive and wrong. Net Neutrality should be achieved through proper constitutional, representative government, not by sweeping regulation imposed through unilateral redefinition by unelected executive-branch bureaucrats.

Net Neutrality should be implemented through a proper legislative process in congress, not by executive-branch decree.

And for that reason, I oppose President Obama’s proposal. Not because of the ends, but because of the means.

The responses from various broadband internet companies is also interesting and worth your time to read: Verizon’s ResponseAT & T’s Response, Comcast’s Response .

The response from FCC Chairman Tom Wheeler [PDF] also shows that the issue is more complicated than President Obama’s oversimplification implies, noting that federal courts struck down previous rules attempting to prevent blocking and discriminating against content.

Chances are high that if the FCC did unilaterally reclassify broadband internet providers as public utilities as Obama proposes, that the companies would take it to court and win based on existing court precedents and the intent of Congress in establishing existing laws.

In the bigger scheme of things,  I also worry about unintended consequences.

I wonder if giving government too much regulatory power over key Internet resources we might create perverse incentives for large companies to use their lobbying power to employ the government as a cudgel against their competitors.

After all, those who are worried that Senator Cruz’s opposition to Net Neutrality is driven by the influence on him of big business lobbyists and campaign contributors, should consider the fact that increasing government regulation over the Internet simply exacerbates that exact problem.

If the FCC can unilaterally redefine broadband service providers as public utilities, and then establish sweeping regulations without new legislation, then why wouldn’t they be just as susceptible to the influence of lobbyists, powerbrokers, backroom deals, and industry revolving doors as as Senator Ted Cruz may or may not be?

Increasing government power doesn’t usually stop big companies from playing dirty against their competitors; it just changes the arena in which it plays out from the business sector to the government. So instead of throttling speeds through deals with service providers, they will simply use their industry revolving door to the FCC to impose subtle, but burdensome regulations that serve just as well to keep potential competitors at bay.

In other words, it doesn’t really solve the underlying problem. It just changes the venue.

That is one of the reasons why I would rather have the issue addressed through proper constitutional processes in the legislature by the elected representatives of the people.

UPDATE: Be sure to read Mark’s comment below with some more in depth knowledge.

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4 Responses to Ends vs Means – The Problem With President Obama’s Call for Net Neutrality

  1. I agree with you completely regarding using the FCC as the vehicle and not actual elected official who are accountable to the people. Quite frankly, I am sick and tired of crucial decisions being farmed out to political appointees who are often very difficult to fire if they abuse their power or discretion.

    Some would argue that it isn’t any better letting corrupt politicians regulate the market. It is better — precisely because I can vote the scalawags out of office if they decide to abuse their privileges.

    Oh, and you would think a former Constitutional law professor would lean toward letting the people have more control on this issue, via their personally elected representatives. The fact that Obama’s default seems to be executive overreach ought to trouble everyone.

  2. Experience indicates that substantial regulation could easily do far more harm than good. That said, it is not a matter of the FCC unilaterally adopting powers they were never granted, but rather the opposite.

    It took a great deal of dishonesty and a handful of fortuitous coincidences for the FCC to ever conclude that Internet access service was an unregulated “information service” that should be covered by Title I of the Communications Act of 1934, rather than a regulated “telecommunications service” covered by Title II.

    If you take a look at the Act, “information services” are things like an online encyclopedia, a directory, or a stock quote service. You connect to them using an “telecommunication service”, basically a communications network. The law was intended to leave the former unregulated, and subject the latter, a natural monopoly, to extensive regulation. The sort of regulation that brought us all sorts of things both good and bad about the public switched telephone network.

    The Baby Bells, long chafing under such regulation, and itching for the chance to get out of the common carrier business where every sizable city had a dozen different Internet Service Providers, persuaded the FCC about a decade ago that Internet access service wasn’t a telecommunications service after all, but rather an “information service”. They did this on the flimsiest of grounds too, arguing that since (for example) Internet access service required directory service (DNS) to be generally useful, it wasn’t really a telecommunications service, but rather an “information service” that should, per the law, be completely untouched by regulation of any kind.

    It is this ridiculously foolish decision by the FCC that has led to their loss in court twice now over these issues. By the FCC’s own determination, Internet access service is an unregulated Title I service, rather than a regulated Title II service. This, to put it mildly, is not what Congress intended.

    Congress gave the FCC all the authority in the world to regulate Internet access providers like common carriers under Title II. Perhaps too much authority. Nearly everyone agrees that a full spectrum exercise of Title II authority (including, horror of horrors, price regulation) over Internet access service by the FCC would be a disaster, so proponents have been pointing out that the FCC can legally “forbear” from applying some of the authority they have been granted.

    So now Congress has three basic choices: (1) They could wait and see if the FCC is disciplined enough not to abuse the authority they have granted them in spades in this area, or (2) they could exempt Internet access service from the Communications Act of 1934, or (3) they could start repealing sections of Title II wholesale so that the FCC doesn’t have obnoxious levels of easily abusable authority over nearly every large scale communications network in the country.

  3. J. Max Wilson

    Thanks for that clarification, Mark. I appreciate the correction.

    This statement from Senator Mike Lee on the subject is also worth a look:

    http://www.lee.senate.gov/public/index.cfm/press-releases?ContentRecord_id=1d9c383d-ded6-47d1-91cd-4aeab9d9a895

  4. Here is a nice article from The Atlantic that addresses the legal issue here.

    Antonin Scalia Totally Gets Net Neutrality
    Robinson Meyer, May 16 2014
    http://www.theatlantic.com/technology/archive/2014/05/net-neutralitys-little-known-hero-antonin-scalia/361315/

    We should worry of course about over-regulation of Internet service providers, but beyond the classification issue here, it is hard to imagine the Internet operating in its current form without either net neutrality regulation (in an appropriately mild form) or the threat of it.

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