Editor’s note: Ryan Radia, associated director of Technology Studies at the , and Wayne Crews, vice president for Policy at CEI, issued the following replies to the to file a “Notice of Inquiry,” formally opening a review of U.S. broadband regulation. CEI is a non-profit, non-partisan public interest group that studies the intersection of regulation, risk, and markets.

By RYAN RADIA

WASHINGTON, D.C. – The Notice of Inquiry launched [Thursday] by the FCC will take America’s broadband market down a dangerous path that threatens competition, innovation, and consumer protection.

Congress has never permitted the FCC to mandate ‘open’ broadband Internet networks, as the Comcast court [decision] reaffirmed. In fact, many members of Congress have explicitly called on the FCC not to apply telecommunications service regulation to the broadband sector.

Yet instead of heeding the call of Congress, the sole source of the FCC’s authority, the Commission is attempting to grasp unnecessary and destructive regulatory powers by offering legally dubious proposals to reclassify Internet service providers.

America’s telecommunications landscape wilted for much of the 20th century under the FCC’s public utility-style regulation – precisely the type of regulation the Commission now wishes to perpetuate in the broadband sector. To the extent that there is insufficient broadband competition in the United States, price controls and other federal mandates are to blame. Broadband users need less government, not more.

Broadband networks and, more importantly, networks that have yet to be created all hold enormous promise for America’s economic future. It’s not a coincidence that America’s most vibrant communications platform, the Internet, has evolved largely free from regulatory intervention. As today’s proceeding reminds us, the greatest obstacle to the evolution of communications wealth is the FCC itself.

"Important inflection point" at hand

By WAYNE CREWS

WASHINGTON, D.C. – U.S. communications is at an important inflection point. As [Thursday’s] proceeding indicated, our national communications laws are woefully outdated. These laws hinder broadband competition and are responsible for legal distinctions at odds with market developments.

Net neutrality is the perverse policy that infrastructure companies should not control content, but that content companies, in conjunction with the FCC, should control infrastructure. So at the outset, [Thursday’s] proposal to arbitrarily classify frontier communications technologies into self-serving government silos is backward, destructive and offensive – and, worse, it sets the stage for future political predation against today’s temporary victors.

It is the duty of Congress now to rein in the FCC’s inability to acknowledge when it needs to step aside and recognize it is not an elected lawmaker.

Communications policy must acknowledge that competition between technologies is a key ingredient not just for competition, but for promoting a national broadband policy. The best way to achieve these objectives is through a series of deregulatory legislative initiatives. Communications regulation deserves more than a mere “update” – largely, it must be phased out.

The removal of government regulation – deregulation – does not mean that the industry is unregulated. Competition, or even the threat of competition, regulates the behaviors of companies in efficient and consumer-enhancing ways. In communications, competition exists among an increasing number of platforms.

Congress must consider these broad market developments and act in tailored ways that change communications law and reform the agency that administers it. A next generation communications policy must distinguish economic regulation from social welfare initiatives.

Congress should eliminate rules that regulate market performance and focus on ways to implement social policy – such as universal service – in ways that do not require FCC oversight. Finally, Congress should restructure the FCC and provide a legislative mandate to increase the market’s role in managing spectrum rights.

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