Why would the former head of a federal agency write an opinion essay defending a federal regulation he created without ever naming the regulation he is trying to defend?
Because he doesn’t want you to know there was a time when the regulation never existed.
First, some back story. Progressive activists have always been uncomfortable with the unregulated nature of the internet. So when Barack Obama was running for president in 2008, they immediately began lobbying his campaign for so-called net neutrality regulations that would enable the federal government to begin regulating the internet the same way the federal government regulates telephone companies.
In 2010, the Federal Communications Commission released its “Open Internet Order,” which allowed federal bureaucrats to begin engineering the internet as they saw fit. The nation’s internet service providers thought the Internet was working just fine without these new regulations so they sued in federal court to block them – and won.
Concerned that an independent agency wasn’t accomplishing then-President Barack Obama’s progressive agenda, in November 2014, the administration urged the FCC to create a new legal justification for their net-neutrality policy using the same regulations designed for public utilities. The “independent” FCC capitulated and adopted a new Open Internet Order in February 2015. That regulation is also being challenged in court, but the ongoing litigation may be moot because new FCC Chairman Ajit Pai announced April 26 that the FCC would be revoking the order it imposed on the internet just two years ago.
Enter Tom Wheeler, Obama’s former FCC chairman, and two of our Democratic colleagues in the Senate, who wrote a commentary for the Washington Post the same day Pai made his announcement, and claimed, “For as long as the internet has existed, it has been grounded on the principle of net neutrality.” But the term “net neutrality” didn’t even exist until 2003, and the regulation the rest of the op-ed goes on to defend is barely two years old.
The reason Wheeler et al. want to keep their audience ignorant of this history becomes clear when they make the case for Pai keeping the new net-neutrality regulations: “Net neutrality also allows small businesses to compete against the largest, most profitable corporations. Here’s just one example. In 2005, three guys set up shop above a pizzeria in a strip mall in San Mateo, Calif., where they launched the now-ubiquitous YouTube. Video-sharing websites were in their infancy, but these guys already faced competition from something called Google Video. Because of net neutrality, YouTube was able to contend with Google on a level playing field.”
It’s a nice story, except for the fact that the very FCC regulation these senators claim allowed YouTube to be created in 2005 didn’t even exist until 2015. In fact, this story proves our point: The internet was not broken when the FCC began its crusade to fix it. Its 2015 Open Internet Order was a solution in search of a problem. In the 400 pages that comprise the order, the FCC relied solely on hypothetical harms, using words such as “may,” “could,” “might” and “potential” on several hundred occasions. If these imaginary threats were all it took for the FCC to subjugate ISPs, what flimsy explanation would it need to control the rest of the internet ecosystem?
We reject the idea that the federal government should control the internet. That’s why we have introduced the Restoring Internet Freedom Act, which will complement Pai’s efforts to repeal the 2015 internet takeover by preventing the FCC from issuing any similar regulations in the future. Decades of bipartisan consensus rejected this notion, too. In 1998, a group of Democratic senators wrote to President Bill Clinton’s FCC chairman, Bill Kennard, seeking “to make it clear that nothing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of internet and other information services or to expand traditional telephone regulation to new and advanced services.”
This is because traditional telephone regulation was designed to regulate a 1930s monopoly, not the vibrant Internet. As Pai recently explained, “regulations designed for monopoly will push the market further toward monopoly.” This is not what is best for citizens in Utah, Wisconsin, Texas or the rest of the country. We want more competition, not less. More investment, not less. More innovation, not less. We support an open internet. But we reject the notion that heavy-handed regulations are the way to accomplish this goal.
(Republicans Ted Cruz of Texas, Ron Johnson of Wisconsin and Mike Lee of Utah, are members of the U.S. Senate.)