Six Myths About Net Neutrality

The biggest myth about net neutrality is the implicit assumption that regulating Internet Service Providers is the first and most important step regulators must take to ensure the continued progress of the digital economy. This idea is rapidly becoming laughably dated as we gain experience with platform monopolies, rampant surveillance, fake news, and cyber-security meltdowns. Here’s a list of the little myths that support the big one.

Myth #1: “The design of the Internet prevents interference with applications.”

Fact: Unlike traditional networks that segregated the communications of different parties from each other, the Internet co-mingles data from all applications. Because some applications – such as Skype – require protection from other applications, Internet standards permit ISPs to mitigate harm by managing traffic. Extreme net neutrality regulations change the design of the Internet for the worse.

Myth #2: “Internet service providers have always been strictly regulated by the FCC.”

Fact: The FCC treated Internet service as an  unregulated, enhanced service from its advent in 1989 until the 2015 Open Internet Order. Some transmission facilities, such as DSL, were treated as Title II telecommunication carriers before 2005, and others – such as cable modem and cellular data – were not. But transmission facilities do not block, throttle, or discriminate; services do. Hence, the only history that matters is that of ISP regulation.

Myth #3: “The Federal Trade Commission can’t regulate ISPs because of a court ruling on common carriers.

Fact: A Ninth Circuit panel decision barring the FTC from moving against any activity of any firm involved in common carriage in any way has been reversed. There is a condition in the FTC Act barring the regulation of common carriers, but it does not apply to Title I services. The Restoring Internet Freedom (RIF) order revoked the Title II telecommunication carrier status of ISPs. Because Congress rejected the privacy order passed by the Wheeler FCC with a CRA resolution, reversing the RIF order with another CRA action would allow ISPs to escape privacy enforcement altogether.

Myth #4: “States can (or must) pass laws restoring the 2015 Open Internet Order.”

Fact: The DC Circuit Court ruled in the 2014 Verizon v. FCC decision that it is unlawful to require common-carrier-like behavior from deregulated, Title I services. Just as the FCC can’t do this, neither can the states. And states lack the authority to change the status of ISPs from Title I to Title II.

Myth #5: “Without net neutrality regulations, large corporations will have fast lanes while advocates and small companies will be stuck on dirt roads.”

Fact: Every website is in a fast lane today because ISPs deliver data to users as fast as they receive it; yet some sites load faster than others. Large corporations such as Apple, Google, Facebook, Akamai, and Amazon have spent billions on Content Delivery Networks that provide them with blazing speeds. Non-profits and startups don’t spend as much on web servers, so their performance lags. Regardless of the roadway, economy cars are not as fast as supercars. The inequality of fast and slow computers cannot be overcome by regulation.

Myth #6: “Net neutrality regulations level the playing field for all consumers, businesses, and organizations.”

Fact: The FCC’s 2015 Open Internet Order explicitly tilted the playing field by protecting the advertising-oriented tracking networks operated by Google and Facebook from competition from ISPs, preserving an effective duopoly. In reality, a radically neutral Internet favors companies willing to build private facilities over those that invest in open, public facilities available to all applications. In large part, Amazon and Netflix owe their dominance to the relative neutrality of the Internet.

Conclusion: The dissenting opinion by Senior Circuit Judge Stephen F. Williams in the challenge to the FCC’s 2015 Open Internet Order remains the best reading on why that framework was unfair and counter-productive (page 116).