No, the FCC isn’t overturning net neutrality

January 29, 2018 08:15 AM
Closing Tick

Many people are in a veritable state of hysteria following the Federal Communications Commission (FCC) vote on Chairman Ajit Pai’s “Restoring Internet Freedom” (RIF) order. It’s a nasty state of affairs, and it’s one unfortunately driven by a lot of false rhetoric and outright fearmongering over how policy is actually changing. Telling people that a policy change will “end the internet as we know it” or “kill the internet” can agitate troubled people into doing crazy things.

In truth, the Obama administration-era “Open Internet Order” (OIO) that the FCC overturned has little to do with “net neutrality” at all. In fact, the OIO would still allow Internet Service Providers (ISPs) to block content—to say nothing of the many non-ISP tech companies that can and do openly suppress access to content.

Furthermore, repealing the OIO does not mean that the principles of “net neutrality” will not be upheld, nor that ISPs will be “unregulated.” Rather, the RIF will rightly transfer oversight of ISPs to other regulatory bodies in an ex-post fashion.

The OIO allows all kinds of content filtering

One of the biggest misconceptions of the OIO saga is that it achieved “net neutrality.” It didn’t. While proponents like to spin a lot of rhetoric about “treating all traffic equally,” the actual implementation of the Obama administration’s regulations did nothing of the sort.

This hypocrisy is relevant for more than just ideological inconsistency. It’s about economic power. By encouraging harsh regulation of ISPs that effectively controls the rates that major tech companies can be charged for bandwidth, these companies are engaging in a kind of regulatory capture. 

Not only is it unfair, it is absolutely disingenuous to the user bases that they have so inflamed with their rhetoric. These companies are not taking principled stands at all. They are trying to use the force of the state to improve their economic outlook. In Pai’s words, “they might cloak their advocacy in the public interest, but the real interest of these Internet giants is in using the regulatory process to cement their dominance in the Internet economy.”

The second biggest misconception about the OIO repeal is that consumers will simply be at the mercy of unscrupulous broadband service providers without recourse or protection. This has never been true, and will not be true under the RIF either.

OIO supporters imagine a world where ISPs slice and dice internet access into tiered packages, similar to cable subscriptions. Of course, no ISP has ever come close to proposing anything like this arrangement, but this scenario has curiously lodged itself as a chief anxiety of many net neutrality supporters.

The RIF will actually provide a more robust regulatory framework than the one that proceeded the OIO. It will transfer oversight of ISPs to the Federal Trade Commission, which has decades of experience ensuring consumer protection, privacy, and security. It will return to transparency rules established by the FCC in 2010, which would require broadband providers to disclose their network management practices, thereby cutting down on the potential for sneaky behavior. And most importantly, it would achieve these neutral network goals without erecting a Depression-era system of permission and control that is both costly and susceptible to corruption.

Keep calm and binge on

The internet is important in our lives, so it is easy to see how people can get upset when they are told that a policy change will ruin it. But a brief examination of the facts shows no such threat, and in fact, the RIF can actually preserve the internet that we all know and love.

People who maintain that the sky will fall and the internet will forever change for the worse are either misinformed or opportunistic. Moving oversight of ISPs from a permissioned ex-ante regulatory regime to a permissionless ex-post one not only makes sense, it is the kind of framework that allowed the internet to develop into the powerhouse of innovation that we enjoy today.    

Note: A version of this article initially appeared on

About the Author

Andrea O’Sullivan is program manager for the Technology Policy Program at the Mercatus Center at George Mason University and the coauthor of “Bitcoin: A Primer for Policymakers.” @anjiecast