By Brendan Carr
Special to The Washington Post
Americans cherish a free and open Internet — and rightly so. It has revolutionized nearly every aspect of our lives. So, it’s no surprise that the recent announcement that the Federal Communications Commission will vote Dec. 14 to restore Internet freedom has been met with strong (and colorful) reactions.
But, unfortunately, far too many are intentionally fanning the false flames of fear. The apocalyptic rhetoric is quite something — even by Washington standards. If the FCC were ending the Internet as we know it, I would be pretty fired up, too. But it is not.
If the phony claims are to be believed, the FCC is about to unleash a Mad Max version of the Internet in which Internet service providers are free to operate without any legal restraint. One common meme suggests that by reversing the Obama-era FCC’s 2015 decision to apply Title II regulations to the Internet, the FCC will remove the one bulwark stopping ISPs from balkanizing the Internet — from blocking websites, creating fast lanes or discriminating against content.
It’s hard to decide where to begin in debunking these myths. But this is an important issue that millions of Americans care passionately about. So, let me make a few points.
Next month’s FCC vote will simply return the Internet to the same regulatory framework that governed in 2015 and for the 20 years that preceded it. The Internet flourished under this approach, while consumers and innovators alike benefited from a free and open Internet.
In other words, the FCC is not experimenting with a radical new or anarchic approach to the Internet. Instead, we’re returning to the tried-and-true framework that protected consumers without the negative results we’ve seen during the FCC’s two-year detour into heavy-handed, utility-style regulation: a diversion that, as the proposed order explains, has seen investment decline, broadband deployments put on hold and innovative new offerings shelved, all to the detriment of consumers.
Here’s another point the memes don’t convey: The FCC’s plan ensures that robust open-Internet protections are in place. Here are just four of them:
First, the FCC’s decision will bring additional consumer protections to bear — ones we do not enjoy under the current regulatory regime. When the FCC took the unprecedented step of applying Title II regulations to the Internet in 2015, it completely stripped the nation’s premier consumer protection agency — the Federal Trade Commission — of its authority to protect consumers from ISPs. Reversing the FCC’s Title II decision will return the FTC to its role as a steady cop on the beat and empower it to take enforcement action against any ISP that engages in unfair or deceptive practices — an important protection for Internet openness.
Second, strong consumer privacy and data security protections will apply. Since the FCC’s Title II decision, the FTC — which is also the nation’s most experienced privacy enforcement agency — has been prohibited from taking any action regarding the privacy or data security practices of ISPs. Consumers will benefit greatly from a return to these protections. Indeed, before the FCC stripped it of jurisdiction in 2015, the FTC brought more than 500 privacy enforcement actions, including against ISPs.
Third, federal antitrust laws will apply. Section 1 of the Sherman Act renders anticompetitive agreements illegal. So, if ISPs reached agreements to act in a non-neutral manner by unfairly blocking, throttling or discriminating against traffic, those agreements would be per se unlawful. Moreover, Section 2 of the Sherman Act makes it illegal for a vertically integrated ISP to anti-competitively favor its content or services over that of an unaffiliated business.
Fourth, state consumer-protection laws will continue to apply and state attorneys general can bring actions against ISPs. These authorities will provide another strong set of legal protections against unfair business practices by ISPs.
In short, Mad Max fans, this is no Thunderdome. The FCC is not killing the Internet.
The FCC’s Dec. 14 vote will correct the agency’s two-year detour — and its subsequent harms to innovation and investment — while restoring the authority of the nation’s premier consumer-protection agency over ISPs and ensuring that Americans continue to benefit from a free and open Internet. I look forward to casting my vote in favor of this plan.
Brendan Carr is a commissioner on the Federal Communications Commission.
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