How the Election Impacts the Internet | Citizens Against Government Waste

How the Election Impacts the Internet

The WasteWatcher

To many Americans, the most important outcome of the 2020 elections is who becomes President of the United States, followed by which party controls Congress.  But a much smaller number care deeply about the impact of these results on the federal bureaucracy, which is responsible for carrying out the will of Congress by making and enforcing regulations. 

Nowhere is the contrast between how President Trump’s second term or Joe Biden’s first term affect regulations more apparent than at the Federal Communications Commission (FCC).  During the past two administrations, the FCC has moved from strict government control over many aspects of telecommunications, particularly the internet, to a much lighter touch, competitive, free-market approach to telecommunications and technology.    

During the Obama administration, both FCC Chairman Julius Genachowski in 2010 and Chairman Tom Wheeler in 2015 supported utility-style, outdated, and restrictive rules on internet service providers (ISPs), with the FCC finally adopting the Open Internet Order (OIO) in 2015.  The order changed the ISPs from an information service under Title I of the Communications Act of 1934 to becoming a common carrier under Title II, which was enacted to cover old-fashioned dial-up telephones.  Despite claims that the OIO, also known as the net neutrality order, would improve the internet, it created a “mother-may-I” restrictive regime that forced ISPs to seek prior approval from the FCC for new innovative technology.  The requirement to run everything past a government agency was enough to inhibit investment in broadband deployment by the ISPs.

Following adoption of the Open Internet Order, one economist found that the potential for strict regulations on broadband internet service providers, which began under Chairman Genachowski, caused telecommunications investment to decline by 20 percent to 30 percent, or $30 billion to $40 billion annually, between 2011 and 2015.  This paper concluded that the average annual investment of $126 billion would have been at least $160 billion annually.  According to U.S. Telecom, since the FCC repealed net neutrality in the Restoring Internet Freedom Order (RIFO), broadband investments increased by more than $3.1 billion from 2017 to 2018 with providers investing approximately $80 billion in network infrastructure alone, and these networks have proven to be resilient in managing the flow of traffic, even during peak usage periods, and more importantly during the unprecedented usage that resulted from COVID-19.

In Europe, where networks built or owned by governments and strict mandates on service providers are prevalent, the impact on the internet during this crisis has been dramatically different from in the United States.  The centralized control and lack of competition left European countries unprepared for the surge in broadband use that occurred after the outbreak.  The European Union ordered internet edge providers like Netflix and YouTube and gaming apps like Twitch to pull back their high-definition services, and platform services like Amazon Prime, Apple TV, Disney Plus, and Google to reduce their bandwidth services to mitigate the increased strain on the networks.  Throttling or slowing down entertainment services is prohibited under the EU’s net neutrality laws, making broadband traffic management more difficult, with telecommunications providers in countries like Spain urging consumers to “ration their internet usage by streaming and downloading more in off-peak hours.”

Among its other negative impacts, the strict government mandates imposed by the OIO would not have allowed ISPs to conduct proper traffic management with respect to the increased need for healthcare and public safety services.  Joe Biden will undoubtedly appoint commissioners to the FCC that will restore the OIO, and if Democrats control Congress, Title 1 could be amended to cover ISPs.  That would undermine new investment and innovation at exactly the wrong time as the nation continues to recover from the pandemic.

The following four eminently reasonable principles have guided internet governance since 2005 (interrupted by the OIO):  1) consumers should be able to access lawful content of their choosing; 2) consumers should  be able to run applications and use services of their choice, subject to the needs of law enforcement; 3) consumers should be allowed to connect to the internet their choice of legal devices that do not harm or disrupt the network; and, 4) there should be competition among network providers, application and service providers, and content providers. 

ISPs have agreed to abide by these principles and when they are included on their websites, if they violate any of them, they would be subject to investigation and enforcement by the Federal Trade Commission for violating truth in advertising laws. 

The internet is too important to the U.S. and global economy to go back and forth based on whomever sits in the White House.  Congress must codify the four principles or something very close thereto.  It would be quite damaging if Congress instead enshrined the OIO into law and treated ISPs like dial-up telephone companies again.

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