The Monitor's View

A court wisely rules on Net neutrality, FCC, Comcast

A court ruling against the FCC on Net neutrality brings up issues about the federal role in expanding access to broadband Internet. First rule: Do no harm, as the Web ever changes.

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For Internet users, here’s a heads up:

Congress and the Federal Communications Commission (FCC) are now more worried than ever that you may need help with your high-speed Internet, or broadband connection. They’re concerned about “Net neutrality,” or that your broadband provider not restrict your access to all content providers such as Google or Amazon.

Why the heightened worry about Net neutrality?

Because the D.C. Circuit Court of Appeals ruled this week that the FCC went way beyond its limited legal authority when it penalized cable giant Comcast for limiting a small percentage of its customers who were eating up a huge portion of the company’s bandwidth by downloading huge files.

This pivotal federal ruling will likely heat up a simmering political battle in Washington. President Obama, in his 2008 campaign, promised Net neutrality. And many in Congress now want to give the FCC a specific mandate to keep broadband carriers such as Verizon or Comcast from limiting content providers such as Google – assuming they are so inclined.

That companies providing a Web service would hurt their customers with less content is a big and unproven assumption. The fear is especially unfounded given the increasingly competitive market for broadband – especially with wireless devices such as the new Apple iPad now in vogue.

Some 95 percent of Americans have access to at least four wireless carriers that offer broadband, in addition to the old standbys such as cable, satellite, and phone line carriers still offering broadband access.

That’s quite a range of choices, and it may improve if companies don’t fear more government rules coming down that might discourage investments in this ever-changing industry. Lawmakers can easily predict the future for the Internet, given its rapid changes of the past.

As long as consumers can easily switch to a new high-speed carrier, then the market is working. Government regulation is not needed to force a carrier to stop restricting content.

The federal court ruling rests on the principle that government should not regulate private commerce unless there is a sustained and harmful failure in a market. No such failure has been proved in denying broadband content on a regular basis. And without an explicit law giving the FCC authority to impose Net neutrality on telecommunication companies to correct a market failure, it cannot act.

The FCC was created some 80 years ago on the assumption that the airwave spectrum, which is a limited resource, could not be allocated efficiently by the market for uses such as radio and TV (and later wireless communication) without government help.

Government also decided that it had a role to play in limiting the number of phone lines and cable lines that could be strung or buried along America’s public streets. It created artificial monopolies for public purposes under the technology of the time.

And indeed, preventing abuses by a monopoly or a duopoly is a legitimate government purpose. But broadband access is quickly moving beyond that possibility. Congress needs to instead worry about increasing competition in broadband – by, for instance, allocating more spectrum for its use and insisting on transparency.

Such a proposal for more spectrum has been made by the FCC in its recent plan to increase Internet access. Let’s hope Congress focuses its coming debate on how to promote competition on the Web with smart government and not, as the court ruling found this week, on regulatory authority that is fanciful and harmful.

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