Net neutrality kabuki theater

[Commentary] In the name of protecting the "open Internet," the Federal Communications Commission exercised the "nuclear option" and voted to reclassify broadband Internet access as a common carrier telecommunications service under Title II of the Communications Act. While we won't know the exact parameters of the commission's reasoning until the order is made public, given preliminary reports about what the commission intends to do, I have no doubt that the FCC will engage in more legal gymnastics than a Cirque du Soleil show on the Vegas Strip to justify its tortured interpretation of Title II. As a result, we can look forward to years of litigation, regulatory uncertainty and potential reductions in broadband investment.

The root of the problem is that the net neutrality debate long ago moved from a substantive discussion on how best to protect an open Internet to the realm of the political. Early in the debate, the Clinton-era FCC observed that "classifying Internet access services as telecommunications services could have significant consequences for the global development of the Internet. We recognize the unique qualities of the Internet, and do not presume that legacy regulatory frameworks are appropriately applied to it." For this reason, we at the Phoenix Center cautioned eight years ago that "policymakers considering network neutrality proposals should engage in a cost-benefit analysis of the particular proposal before them. ... Analytics, not emotion, should be the centerpiece of the network neutrality debate."

[Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]