President Obama's secret plan to protect the "open Internet" is locked inside the Federal Communications Commission. We don't know what's in the 322 pages, but we are told it includes a transparency rule.
We think it also includes a no-blocking rule, which is crucial because the commission's own website has been blocking access to the press releases of its minority commissioners.
The FCC, consisting of five appointed members, is celebrating the democratic process used in formulating the 332-page plan. In a campaign coordinated with the White House, commission staff solicited several million form letters from activists cheering the ever-popular "Title II reclassification." Nearly 1 million voters responded furiously with comments of their own, advocating the exact opposite policy, one of Internet freedom. Many senators and congressmen are skeptical an "independent, expert" agency is supposed to work this way. Commission staff, however, are warning Congress, and its 535 elected representatives, to buzz off, lest it intrude on democracy.
The White House has spoken with authority. It directed the FCC to use "Title II of the Telecommunications Act" of 1996 to boost the deployment of "gigabyte" broadband. Never mind that the White House meant Title II of the Communications Act of 1934, or that it confused bytes with bits -- it's gigabit broadband. Oh, lighten up. Comm Act, Telecom Act -- close enough, right? And what's a mere factor of eight when designing complex technical systems?
Regardless, Congress doesn't understand the law it passed in 1996. It thinks it told the FCC to leave the Internet alone. "It is the policy of the United States," Congress said in the bipartisan Telecommunications Act of 1996, "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Oh, dearest Congress. Such a quaint understanding of words.
Concise statutory statements are no match for the FCC's linguistic gymnastics. For starters, Internet service providers, the commission's press secretary informed us, will no longer be part of the Internet. See how easy that is. Congress says the Internet should be "unfettered" by regulation. The FCC says: ISPs aren't the Internet. Voilà .
As a backup, it is also handy, when you think Congress or the courts may have tied your hands in one way, to make up a new service to regulate. Reading between the lines of various public statements, it seems the FCC is cleverly deploying this tool. Even though consumer ISPs don't provide a service to websites on the "edge" of the network, the commission will pretend they do -- and then regulate that service.
It is also helpful to pick and choose the victims of the new policy. For example, Google, which accounts for around 20% of Internet traffic, is one of the most robust and long-standing backers of Internet regulation. Thanks to the rush of democratic expertise from liberal arts activists, however, the rules Google thought it wanted have snowballed beyond recognition. So on Friday, Google once again insisted the FCC exempt it from the new rules.
Turning language upside down is also effective -- and lots of fun. Many skeptics of regulation are worried that government intrusions into such a technical and dynamic realm as the Internet could slow its pace of experimentation and growth. So in hearings last month, one activist warned Congress not to "micromanage" the FCC, lest Congress interfere with the FCC's "flexibility" and capacity to "innovate." Brilliant! Two points for a reversal!
Flexibility in one's advocacy is crucial, too. For the last decade, fans of government-run Internet argued that the U.S. had fallen woefully behind the rest of the world, with "pathetically slow" broadband and mobile. That's why we needed Washington to step in and run the Internet. But when consumers looked around them and saw a booming Internet sector, with an overwhelming rush of content, apps and devices, with loads of Silicon Valley startups achieving billion-dollar valuations, and with evidence piling up that the U.S. leads the world in Internet infrastructure, the argument lost its effectiveness.
So the advocates switched course with great agility. "Consumers," the new argument goes, "like the Internet the way it is." Which is, of course, why we need 332 pages of new regulations -- to protect the thriving U.S. Internet . . . from the engineers and entrepreneurs who brought you the Internet.
Unfortunately for the FCC, the courts will almost certainly overturn the president's plan, and so all its creative rationales will vanish into the wind. Genius denied.
Bret Swanson is president of the technology research firm Entropy Economics LLC and a visiting fellow at the American Enterprise Institute's Center for Internet, Communications, and Technology Policy.