Internet freedom that isn’t

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When the Federal Communications Commission (FCC) adopted its Open Internet Order in February 2015, it virtually conceded it was not adopting the new regulatory mandates to correct an existing market failure. Thecommission didn’t claim that the Internet was in any sense “closed.”

Instead, the commission’s Democratic majority (the two Republican commissioners dissented), asserted more than a dozen times throughout the 300-plus-page order that the purpose of the new regulations, which imposed public utility-like regulation on Internet service providers (ISPs), was to “preserve” Internet openness. For example, one section heading read: “The Commission Must Act to Preserve Internet Openness.” The first sentence under that heading referred to the benefits of “preserving the open nature of the Internet.”

The FCC’s emphasis on preserving Internet openness is relevant. Because it was not fixing something broken, the commission needed to minimize what many saw as the potential harms from applying heavy-handed regulation to ISPs that, up to then, had been only lightly regulated.

Unfortunately, in his ardor to downplay the potential harms resulting from the new Internet regulations, FCC Chairman Tom Wheeler’s rhetoric has far outrun reality. Here are two important instances of the rhetoric versus reality gap:

Mr. Wheeler has repeatedly asserted the Open Internet Order does not mean an end to the era of “permissionless innovation” that is widely acknowledged to have enabled the dramatic evolution of new Internet services and applications. For instance, when the new regulations were adopted, he declared they would maintain the “rights of innovators to introduce new products without asking anyone’s permission.” Not so.
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