The notion that the Federal Communications Commission would designate Internet access to be a Title II service – a “public utility” as Susan Crawford and other net neutrality advocates put it – was inconceivable as recently as a few months ago. Then, just after the election, something happened: Demonstrators appeared outside the home of FCC Chairman Tom Wheeler, and, on the same day, President Obama posted a YouTube video calling on the commission to impose Title II regulation.
Those events didn’t happen by accident. Rather, they were – according to one sympathetic account – the result of “one of the most sustained and strategic activist campaigns in recent memory,” which successfully “framed net neutrality as a social justice issue, warning about how an Internet with fast lanes would harm the ability of activists to spread their message.”
The extent of the activists’ victory is highlighted not just by the fact that most Americans oppose turning the Internet into a public utility, but also by the growing number of erstwhile net neutrality supporters who have expressed concern – or outright opposition – to the FCC’s overreach.
The Internet Society, for example, said shortly after the vote that while “[t]he goals of the U.S. Federal Communication Commission’s (FCC) Open Internet Order… are all really important … we are concerned with the FCC’s decision to base new rules for the modern Internet on decades-old telephone regulations designed for a very different technological era.”
TechAmerica, a broad-based high-tech trade association, noted that “we have been advocating for strong open Internet rules to protect businesses operating online, and we applaud the FCC for putting such rules in place…. However, we have some concerns about the path the FCC has taken to reach these new rules. Regulatory certainty is key to investment in the communications and information technology industry, and these rules do not provide the certainty we had hoped for.”
Even companies perceived as hard-core net neutrality supporters seem to have gotten cold feet. “Were we pleased it pushed to Title II? Probably not,” said Netflix CFO David Wells at a recent investor conference. “We were hoping there might be a non-regulated solution.”
“We don’t necessarily favor regulation,” a Mozilla executive told the Mobile World Congress on the same day.
Google did not wait until after the fact to seek a more moderate solution. It took big-time heat from liberal activists for joining with Verizon to promote a compromise plan back in 2010. Executive Chairman Eric Schmidt – who told an AEI conference last week that “I have a strong opinion that the best way to have net neutrality is competition” – called the White House in the days before the decision to express his opposition to the Title II plan. By then, it was too late.
I think it’s still too early to draw firm conclusions from what happened here, but one proposition worth considering is that the Internet has shifted the political balance of power away from inherently moderate and pragmatic economic interests in favor of more ideologically motivated ones – in terms of the old Baptists and bootleggers metaphor, that the Baptists (who most Washington types have always thought of as pawns of the more sophisticated bootleggers) may be gaining the upper hand. Food for thought.
Next Wednesday morning the Information Technology & Innovation Foundation, on whose board I proudly serve, will be releasing a new report on this very theme: How Techno-Populism is Undermining Innovation. I’m sure it will be a provocative event, and well worth dropping by on the way to AEI’s lunch with FTC Commissioner Maureen Ohlhausen on another thought provoking (if apparently unfashionable) topic: “Regulatory Humility.” You can RSVP for the AEI event by emailing email@example.com directly.