The Internet's New Enforcer

The FCC chairman appoints himself top cop on the World Wide Web.

Last Monday, in his first big speech as President Barack Obama's new Federal Communications Commission (FCC) chairman, Julius Genachowski began by singing the Web's praises, and portraying it as vital to the workings of society. "Today," he said, "we can't imagine what our lives would be like without the Internet—any more than we can imagine life without running water or the light bulb." On this point, nearly everyone can agree.

Unfortunately, Genachowski drew exactly the wrong lessons from his initial insight: Rather than see the Internet's growth and integration into everyday life as evidence that government intervention isn't necessary, the Web's chief regulator took the opposite view—that the Net's size and scope make government meddling a necessity. The Internet, in other words, is Too Connected to Fail.

The theme of the speech was openness, but for Genachowski, an "open Internet" seems to mean a "government-monitored Internet." Innovators and entrepreneurs may have been responsible for making the Web great, but care, oversight, and access are now up to the government. "Congress and the President have charged the FCC with developing a National Broadband Plan to ensure that every American has access to open and robust broadband," he said.

In other words, Genachowski's starting point is that it is the job of the FCC job to provide access, not the market. But that idea hasn't produced results to be proud of so far. Government's chief contributions to broadband access have been a slew of wasteful city-run wifi networks and a criss-cross of local regulations that inhibit competition between providers. Meanwhile, the market has been successful at providing access: The FCC's own data shows that 98 percent of zip codes have at least two broadband providers and 88 percent of zip codes have four or more broadband providers. That's not to say that competition has produced a broadband utopia. I'm second to none in my annoyance with the poor customer service offered by Comcast, my ISP. But a National Broadband Plan is hardly likely to solve anyone's customer-service related gripes.

Genachowski talks a good game on Internet freedom and innovation, but then positions the FCC as a sort of Internet enforcer. "In the words of Tim Berners-Lee," he said, "the Internet is a 'blank canvas'—allowing anyone to contribute and to innovate without permission." That's how it should be. But the crucial question is permission from whom? Genachowski seems oblivious to the fact that that the regulatory regime he is promoting would implicitly require innovators to get permission for their innovations from his agency. In his words, "the FCC must be a smart cop on the beat preserving a free and open Internet."

A better analogy, however, would be to a judge and jury. Genachowski doesn't merely envision a Web bound by FCC rules, but one subject to the momentary whims of FCC commissioners. "I will propose that the FCC evaluate alleged violations of the non-discrimination principle as they arise, on a case-by-case basis." In theory, this gives the FCC more flexibility, allowing the agency to be smarter and more generous when weeding out violators. But in practice, it's likely to expand the bureaucracy's reach as it refuses to define the boundaries of its authority.

Clearly defined regulations are probably unnecessary, but at least they would provide innovators a sense of stability. But Genachowski's case-specific approach to judging violations—essentially we'll know it when we see it—doesn't even give them that. Now, whenever a telecom company wants to implement a new service or product that works by manipulating traffic flow on the Web, it will have to worry about whether or not its innovation might set off Genochowski's sense of… well, whatever it is that he and the rest of the regulators at the FCC don't like.

Nor was that the speech's only bureaucratic power grab: Genachowski also announced, as previously suspected, that the FCC would move into regulating the wireless data networks that deliver voice and data to handheld devices like iPhones and Blackberries. Genachowski didn't get into the details, but he didn't need to. The speech's message to carriers and data providers was clear enough: There's a new sheriff in town, and his name is Julius Genachowski.

Peter Suderman is an associate editor at Reason magazine.