Who Should Really Decide Net Neutrality's Fate?

Tim Wu, the guy who coined the phrase "net neutrality," went nose-to-nose with the House Judiciary subcommittee on Friday morning to fight for the future of the internet. Congress wants to know if somebody other than the FCC should decide the fate of net neutrality. Wu, for one, thinks that's a pretty silly idea.

On one hand, the FCC's been regulating—or, maybe more importantly, not regulating—the internet for decades. Then again, the FCC has also been doing some floating its own set of silly ideas in the form of proposed rules that would allow fast lanes on the internet. Maybe it's time the pass the baton.

The Federal Trade Commission (FTC), for one, tends to do a good job protecting American consumers. Maybe they're up to the task. Meanwhile, Congress certainly thinks it knows how the internet should work, so maybe they should take a swing. Barack Obama arguably has the internet to thank for his ascent to office. How about a more authoritarian approach?

There are a lot of options out there, but for the sake of reality, it makes sense to take a closer look at what the House Judiciary subcommittee discussed at Friday's hearing.

The FCC has a decent track record…

Flanked by a current FTC commissioner and a former FCC commissioner, Wu did not mince his words, when speaking to Congress. "At stake in the net neutrality debate is the protection of the American political process," he said. "We can't leave a matter that important to the economists."

In other words, the internet's been pretty successful under the FCC's watch, so it doesn't make sense to pass it off to a new agency like the FTC. There's plenty to criticize about exactly how the FCC's been guarding the free and open internet (especially lately) but Wu's point is rock solid. Antitrust law—the FTC's specialty—is written with business interests in mind and only business interests. However, in regulation communication networks, the FCC has to take a wide range of factors into consideration, including but not limited to free speech, social progress, and media policy. And it has decades of experience doing just that.

"I simply don't think [the FTC] are equipped to handle the broad range of policies that are implicated by net neutrality and the open internet," Wu argued. "Despite its imperfections we should stick with the FCC oversight." The Columbia law professor added, "This is no time to jettison the FCC and turn to antitrust instead… the FCC oversight has been terrific both in terms of economic oversight and innovation."

...but the FTC stands up for consumers

Of the four men who testified, Wu is the only one who thinks the FCC is still the right agency to watch over net neutrality. This is an interesting situation, since one of the men, Joshua Wright, is a current FTC commissioner and another, Robert McDowell, is a former FCC commissioner. Isn't it a bad sign if the FCC itself doesn't think it's fully equipped to handle things from this point on?

It's certainly not a good sign. Commissioner Wright propped up the idea that the internet needs to protect consumers, and the FTC has historically done a great job doing that. One need look no further than the breakup of the Bell System in the early 80s to show how America's antitrust laws not only help the people but also promote innovation.

The fourth member of the panel, Prof. Bruce Owens from Stanford, drove this point home. Antitrust law is designed to ensure good business practices by promoting competition and standing up for the consumer. And that's what the internet needs moving forward. "We don't start with regulation," Owens said. "We start with competition."

Who Should Really Decide Net Neutrality's Fate?

Then maybe Congress should intervene?

That's exactly what's happening right now. Friday's hearings were just the latest in a series of increasingly aggressive maneuvers in the House and the Senate that seek both to support the FCC's process and, in a more desperate way, to force them to preserve net neutrality. The lawmakers seem well intentioned enough.

However, like so many issues, Congress tends to be divided on party lines when it comes to net neutrality. Even though many net neutrality advocates like the idea of getting elected officials involved—the FCC's commissioners are appointed, for better or worse—debates get extra dicey when you push them up Capitol Hill. Partisan politics are one thing. The tremendous power of the big telecom lobby is another.

So maybe we should just leave the internet alone.

Ding! Ding! Ding!

Each in his own way, everyone who testified before Congress on Friday said very clearly that the internet has done quite all right without much regulation. Former Commissioner McDowell made an especially salient point in arguing that the FCC's new rules will only muck up a system that's been running very well without them. "The internet is the greatest deregulatory story in all of history," he said. "Nothing is broken that needs fixing."

Wu, who's now running for public office, agreed. "It's been a tide that's risen all boats," he said. This is exactly why we should stay the course. "The reason we haven't had a problem over the past 20 years—or 30 depending on how you count it—is because we have de facto net neutrality in place." This is a powerful statement coming from the guy who coined the term "net neutrality." It's also a nice way of saying "If it ain't broke, don't fix it." And future without net neutrality sounds broken as hell. [C-SPAN]