The FCC's Knowledge Problem: How to Protect Consumers Online

Abstract

The Federal Communication Commission (FCC) has long searched for a legally sustainable way to adopt and enforce network neutrality regulation. The U.S. Court of Appeals for the District of Columbia Circuit added another detour on this path with its January 2014 decision in Verizon v. FCC, and the FCC responded in February 2015 with a controversial action that, among other things, reclassifies broadband as a common carrier service subject to utility-style regulation under Title II of the Communications Act of 1934. Over the course of the FCC’s journey, much has changed in broadband technology and the broadband marketplace. The Verizon decision offered policymakers a chance to take stock of these changes and to consider alternatives to regulation — a chance the FCC rejected. Imposing a set of prescriptive regulations — whether involving speeds or prices — on the dynamic and robust online environment is problematic and, ironically, could impede deployment of the Internet and harm consumers. To protect consumers online, we need informed, flexible, and fact-based enforcement supplemented with self-regulation using technical standards developed through consensus-based, multi-stakeholder organizations of engineers, consumers, and businesspeople. To the extent the government is involved, the Federal Trade Commission (FTC) model of enforcement, advocacy, and industry and consumer education is the better approach that will allow market forces to maximize consumer welfare.