Is the Open Internet Order an “Economics-Free Zone”?

[Commentary] Hi. I’m the “economics-free zone” guy. For those of you not deep in the weeds of network neutrality policy in the United States, I’m the former chief economist of the Federal Communications Commission who used that line as part of a self-deprecating joke I told to defuse tensions at a small but contentious conference on the FCC’s Open Internet Order. In the Order, the FCC controversially redefined broadband provision as a service subject to “Title II” common carrier regulation. It claimed it was doing so to prevent broadband providers – cable, fiber, wireless – from charging content suppliers for delivery at all or for higher quality service, a practice known in the trade as “paid prioritization.”

The phrase “economics-free zone” ended up in a Wall Street Journal op-ed and went somewhat viral, to my regret and chagrin. A panel of the DC Circuit Court of Appeals recently upheld the Open Internet Order by a 2-1 vote, but the dissenting judge, unfortunately from my perspective, made reference to what was part of an off-hand joke. I do not deny saying the Open Internet Order was an “economics-free zone,” although I did not say it intending to slap the FCC. As will be apparent, I do disagree with the Order. But I do so in the belief that the FCC was pursuing its genuine view of the public interest. But now with allusions to this phrase in a judicial opinion, I want to set the record straight.

[Tim Brennan is a member of the Free State Foundation’s Board of Academic Advisors, a professor of public policy at the University of Maryland, Baltimore County, and former Chief Economist at the FCC]