In 2005, the Federal Communications Commission (FCC) issued a Broadband Policy Statement to define the principles of an “open Internet” in response to claims that Internet service providers were unfairly restricting access to content.  The FCC stated that an individual should have an unrestricted ability to access lawful Internet content, run applications and use desired services and connect legal devices to the network.  The statement also called for competition among network providers, application and service providers as well as content providers. 

The proponents of FCC intervention into Internet access and content were supporters of “net neutrality,” a term that sounds reasonable but is instead an attack on private-sector business models.  Advocates of net neutrality want the online world to be forced “open” at the expense of successful Internet providers, but fail to recognize the many tradeoffs to “openness,” such as increased spam, fewer privacy controls, slower service, and, perhaps most importantly, decreased incentives for investment and innovation.

Following the 2005 statement of principles, the FCC spent several years attempting to broaden its authority to regulate the Internet by deciding that broadband Internet access services should be considered a common carrier under Title II of the Telecommunications Act of 1996.  When Congress objected to this determination, the FCC backed away and instead adopted the Report and Order for an Open Internet (Open Internet Order) by a party line vote on December 21, 2010. 

On September 30, 2011, Verizon Communications filed an appeal in the U.S. Court of Appeals for the D.C. Circuit against the Report and Order.  On September 30, 2011, PC Magazine reported that Verizon Senior Vice President and Deputy General Counsel Michael E. Glover stated, “Verizon is fully committed to an open Internet. We are deeply concerned by the FCC’s assertion of broad authority to impose potentially sweeping and unneeded regulations on broadband networks and services and on the Internet itself.  We believe this assertion of authority is inconsistent with the statute and will create uncertainty for the communications industry, innovators, investors and consumers.”  On November 20, 2011, the Report and Order became final.  

The court issued its decision on January 14, 2014 and provided clarity to the scope of the FCC’s authority over the Internet.  While affirming that the FCC has some authority to regulate broadband services under certain sections of the Communications Act, the court found that the FCC overstepped its bounds when it subjected Internet providers to treatment as common carriers under the Open Internet Order through the anti-discrimination and anti-blocking rules on Internet services. 

Prior to the Open Internet Order, the FCC had classified Internet access as an information service as opposed to a telecommunications service, the latter of which is regulated under common carrier provisions of the Communications Act of 1934.  The court affirmed that broadband is not subject to common carrier rules, and remanded the case back to the FCC for further proceedings.  As FCC Commissioner Ajit Pai stated in response to the court’s ruling, “Unless Congress acts, we should stay our hand and refrain from any further attempt to micromanage how broadband providers run their networks.  We should focus on removing regulatory barriers to broadband deployment, not imposing unnecessary rules that chill infrastructure investment.”

Citizens Against Government Waste has long opposed net neutrality and agreed with the court that the FCC had acted out of bounds when it attempted to fix perceived problems by preemptively imposing unfair rules on the innovators who have invested more than $1.2 trillion in building out broadband services since 1996.  Rejecting the FCC’s attempt to redefine Internet access as a “common carrier” service by regulatory fiat, and striking down provisions that treat it as such, the court has preserved the Internet for more innovation, allowing it to continue to be a driving dynamic economic and social force in the twenty-first century.  On January 15, 2014, Fox News reported that AT&T, Comcast, Time Warner Cable, and Verizon all responded to the court’s decision restating their commitment to continuing to maintain an open Internet. 

In spite of Commissioner Pai’s cautionary comments, other commissioners remain dedicated to placing regulatory burdens over the Internet.  In response to the Court’s decision, FCC Chairman Tom Wheeler indicated that he would not do anything that would interfere with the evolution of the Internet, yet he also noted that the FCC “will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”

Pressure is mounting from net neutrality proponents for the FCC to take action to regain control over the Internet.  Following up on a January 22, 2013 promise she made to introduce legislation if the Open Internet Order was overturned, Rep. Anna Eshoo (D-Calif.) joined Rep. Henry Waxman (D-Calif.) in introducing H.R. 3982, the Open Internet Preservation Act, which would reinstate the Open Internet Order until such time as the FCC takes new final action on the net neutrality rules.  On February 10,2 014, five U.S. Senators sent an open letter to Chairman Wheeler, urging him to quickly adopt enforceable rules to prevent blocking and discrimination of Internet traffic. 

On February 19, 2014, the Verge reported the FCC would not appeal the court’s decision, but instead would work within the parameters provided by the court under Section 706 to impose rules over the Internet. 

The net neutrality rules had provided the government with an additional means to micromanage the Internet by redefining it as a common carrier telecommunications service.  In spite of the U.S. Court of Appeals for the D.C. Circuit’s decision, efforts continue to be pursued by net neutrality proponents to increase government control.  It is time to bring some common sense back to the regulation of the communications industry, and stop trying to apply antiquated rules to information services like the Internet.