Earlier this year, the Trump administration repealed the Obama-era Federal Communications Commission (FCC) "Open Internet Order," colloquially known as "Net Neutrality." These rules were put in place ostensibly to keep internet service providers (ISPs) and mobile carriers from blocking and throttling legal content, charging you an arm and leg with every passing month, and favoring their own in-house content over material provided by other people. In less-idealistic language, it gave the government an unfettered right to regulate the business models of ISPs and mobile carriers. The plain fact is that for the past 25 years, our collective internet experience has continued to grow in the number of connections we have, the speed and reliability of those connections, and the range of material and experiences we can access online. As current FCC Commissioner Ajit Pai once told Reason, Net Neutrality "is a solution that won't work to a problem that doesn't exist."
But Net Neutrality, like a good comic-book villain or just about any government program, never really dies. It just gets vanquished for a certain period of time, lies in wait, and then returns with a vengeance. Senate Democrats (and one Republican, Susan Collins of Maine) are now pushing for a "vote of disapproval" that would invalidate the FCC's repeal. While reinstating Net Neutrality rules would be a very bad idea—do you really want to give Donald Trump and the government more power over the internet?—it's right and proper that Congress should be deciding whether the FCC even has the right to regulate the internet.
Although the FCC is technically an independent agency within the executive branch, Congress does have the right to clarify its intentions about the laws that govern those agencies under the Congressional Review Act (CRA), which is designed to reel in the powers of the "administrative state." To the extent that the CRA removes a huge amount of discretion from the executive branch and federal agencies to set policy independent of the laws Congress passes, it's a good thing. However you feel about Net Neutrality, it's clear that regulating the Internet should not simply be up to the whim of a particular commissioner or presidential administration. Indeed, that was one of the arguments against the manner in which the FCC under Obama appointee Tom Wheeler passed The Open Internet Order of 2015. It simply reclassified the internet from an "information service" to a "telecommunications service" under federal law, thus granting itself the power to regulate business practices in a way that had been ruled illegal in previous court cases. Congress should be making that call, not a federal agency.
So yes to the Senate, the world's greatest collection of snoozy lazy bones who don't have a fucking clue as to what Facebook is and can't seem to pass real legislation any more (especially if it involves declaring war or passing actual spending bills), actually doing some work. But all you need to know about how wrong Senate Democrats are about Net Neutrality is this quote from Minority Leader Schumer:
"Our Republican friends say 'let the free market prevail,' " said Senate Minority Leader Charles Schumer (D-N.Y.) "We don't do that for highways."
Let the record show that Sen. Schumer comes from New York City, a place synonymous with the worst traffic jams this side of Moscow and Los Angeles and home to legendarily failing, publicly funded infrastructure boondoggles. A $4 billion subway station? Check. Jacking up prices by 50 percent when bidding on city projects? Sure. Losing $20 billion a year to congestion? Why not? An impending year-plus shutdown of a subway that might kill Brooklyn's renaissance? Right here, buddy.
To the extent that we don't let markets operate when it comes to roads, we reliably and predictably get two equally frustrating outcomes: lots of empty roads where nobody needs them and lots of congestion and snarls in places where people drive. If you're interested in how bringing all sorts of obvious, transparent, and regulated market systems to highways and other forms of transportation can solve traffic problems, go here (Reason Foundation, the nonprofit that publishes this site, also runs a great policy shop on this very topic). FFS, even Gov. Andrew Cuomo, who is nobody ideas of an anarcho-capitalist, is talking about congestion-pricing for Manhattan.
But we're talking about Net Neutrality, or regulating traffic on the Information Superhighway, not just how annoying it is to drive in Chuck Schumer's New York. ISPs and, increasingly, mobile carriers, are businesses that build out capacity and come up with all sorts of ways to accommodate more and more online traffic. There is indeed a physical infrastructure to the internet but it's easier to expand than roads, especially in response to increased and peak demand. On top of that, technology keeps improving so you can get better bandwidth with older infrastructure in a way that doesn't analogize to bridges, tunnels, and highways. Consider this, from the FCC:
From 2012 to 2014, the number of Americans without access to both fixed terrestrial broadband and mobile broadband fell by more than half—from 72.1 million to 34.5 million….But the pace was nearly three times slower after the [net neutrality rules were imposed], with only 13.9 million Americans newly getting access to both over the next two years.
As of year-end 2016, 92.3% of all Americans have access to fixed terrestrial broadband at speeds of 25 Mbps/3 Mbps, up from 89.4% in 2014 and 81.2% in 2012.
Things keep getting faster online. And then there's the emergence of 5G technologies, which will render what's left of the Net Neutrality debate moot. Net Neutrality supporters are quick to point out that many ISPs have effective monopolies or duopolies on the "last mile" of internet, potentially creating a choke point that could be exploited by providers to jack up prices. That hasn't happened, of course, and according to FCC data, access to faster and more connections continues to increase. Building off existing 4G LTE networks, 5G, writes Business Insider,
offers incredibly fast wireless communication that can be used to transmit all sorts of data. It won't replace cables entirely, but for some applications and industries, it could replace the need for them.
Apart from fast mobile networks, 5G will also be used to deliver internet to your home. Its speed is also suited for upcoming technologies, such as providing a continuous stream of data required for many self-driving-car systems.
Both ATT and Verizon have announced plans to roll out 5G this year, which will bring the sort of customer-benefting competition we've seen among mobile carriers to all ISPs.
It will be darkly ironic, of course, if Congress decides to impose Net Neutrality rules on the internet just as the main issue those regs seek to address—perceived lack of competition among ISPs—is solved by technological advances. Darkly ironic, yes, but hardly rare. Like generals, bureaucrats and politicians are usually fighting the last war, working overtime to take down real-and-imagined threats at the very moment when particular companies and technologies are being swept into the dustbin of history.
A few weeks ago, I debated Net Neutrality with Tom Wheeler, the FCC commissioner who issued the 2015 Open Internet Order, and Mozilla's Mitchell Baker. My teammate was former FCC chief economist Michael Katz and the host organization was the excellent and wonderful Intelligence Squared. Go here for full details and background.
Click below to watch the debate.