Information on Net Neutrality

Information on Net Neutrality


Net Neutrality is a concept whose objective is to regulate the Internet as a public utility. As pro-free-market policy analyst Phil Kerpen puts it, such an arrangement “empower[s] the federal government to ration and apportion Internet bandwidth as it sees fit, and to thereby control the Internet’s content.”

In February 2015, when it seemed evident that the Federal Communications Commission (FCC) was poised to enact Net Neutrality as public policy, Randolph J. May, president of the Free State Foundation—a free market-oriented think tank—explained its enormous implications:

“By choosing to regulate Internet providers as old-fashioned public utilities in order to enforce ‘neutrality’ mandates, the commission [the FCC] will discourage private-sector investment and innovation for many years to come, if only as a result of the litigation that will be spawned and the uncertainty that will be created. And the new government mandates inevitably will lead to even more than the usual special interest pleading at the FCC, as Internet companies try to advantage themselves and disadvantage their competitors by seeking favored regulatory treatment. From all indications, the FCC contemplates that the new rules will be sufficiently burdensome and costly—and sufficiently ambiguous—that affected parties will be invited to seek exemptions from the new mandates through ‘waiver’ requests or other administrative mechanisms.”

Philip Hamburger—author of the book Is Administrative Law Unlawful?—picked up the thread from there:

“After administrators adopt a burdensome rule, they sometimes write letters to favored persons telling them that, notwithstanding the rule, they need not comply. In other words, the return of extralegal legislation has been accompanied by the return of the dispensing power, this time under the rubric of ‘waivers.’ Like dispensations, waivers go far beyond the usual administrative usurpation of legislative or judicial power, for they do not involve lawmaking or adjudication, let alone executive force. On the contrary, they are a fourth power — one carefully not recognized by the Constitution…. As the agency gains even more control over various participants in the Internet marketplace, pressures will increase for it to use its dispensing power to grant this or that company (or particular market segment) favored treatment. The commission already has announced it will adopt a so-called ‘good conduct’ rule to assess Internet providers’ practices. Under such an inherently vague standard, the agency necessarily will be granting dispensations to some firms and not others based on the exercise of discretion untethered to any intelligible standard in any law enacted by Congress.”

In other words, dispensations are likely to be granted on the basis of whether or not a particular website’s politics or ideology are acceptable to the government and its FCC. Journalist Seton Motleyexplained that government, by limiting the bandwidth available to websites whose political leanings are at odds with its own, would, under Net Neutrality, “ge[t] to pick winners and losers,” thereby “creat[ing] a situation so untenable and so unworkable that all the private investment will dry up and go away because they can’t get a return.” By default, this would leave government in control of the Internet infrastructure that thousands of private companies have already spent hundreds of billions of dollars creating, maintaining, and developing.

Net Neutrality’s supporters seek, ultimately, to require websites to apply for licenses that permit them to operate. If a particular website’s content is of a political nature, that content could then be classified as the equivalent of a political donation—and thus it could be regulated or limited, just as monetary political donations have traditionally been regulated and limited.

Between 2000 and 2013, George Soros‘s Open Society Institute and the Ford Foundation spearheaded an alliance of leftist philanthropies that gave more than $196 million to pro-Net Neutrality groups like Free Press and the Center for American Progress. Their investments eventually paid dividends in February 2015, when the FCC —in a 3-to-2 vote that was sharply divided along party lines (Democrats in favor, Republicans against)—ruled in favor of implementing Net Neutrality. (Note: The FCC’s five commissioners are appointed by the U.S. President; they serve five-year terms, and no more than three of them may belong to any one political party.)

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