‘Forbearing’ the Constitution: Net neutrality and the FCC

So the latest word is that the Federal Communications Commission (FCC), a branch of government that, amusingly, is still referred to as an “independent” agency, is about to enact so-called net neutrality regulations under Title II of the Communications Act.

{mosads}This, because according to its fans at the commission, such regulations are needed in order to ensure a “fair and open” Internet. Because, however, even the most passionate among them understand the many problems this would otherwise cause, the majority Democratic commissioners are said to be poised to enact regulations that forbear the full imposition of Title ll rules.

Meantime, Congress is considering enacting a law that would itself aim to protect net neutrality, but would do so in such a way as to deprive the FCC of its ability to regulate Internet service providers as a utility under Title II.

If (you’ll forgive the expression) one googles the word “forbearance,” the first definition that comes up reads: “The action of refraining from exercising a legal right …” — and there’s the rub!

With every passing day it becomes clearer that the Internet is the future of the press, and the plain language of the First Amendment bars the government from abridging freedom of speech or of the press.

Some would argue that the kind of regulations the FCC is likely to impose do not affect speech per se, but those who watch such matters closely, and over a long period of time, come to realize that when it comes to media and communications companies, regulatory power over their economic affairs inevitably invites attempts to regulate their content as well.

Given this history, one would think that people who are truly committed to keeping the Internet free and open — a condition which, ironically enough, is obtained even now without net neutrality regulations — would, just as a matter of course, reject the idea of governmental oversight of the Internet.

For the most part, objections to Title II regulation stress the cost to consumers and the growth retarding effects of such regulations, and these arguments are true and reason enough not to subject the Internet to them.

But the bigger reason such regulations should never be enacted lies in the special place the First Amendment plays in our civic life. To put it another way, if the FCC commissioners had a greater respect for the First Amendment, and less for their assumed authority, they would be much charier about assuming the right to “forbear” any regulation of the press.

Maines is president of the Media Institute, a nonprofit think tank that promotes freedom of speech. The opinions expressed are those of Maines alone.