How can we ever hope to influence China, Iran and other undemocratic regimes to provide more Internet access and freedom to their citizens and businesses when our FCC is proposing a radical take back of existing Internet freedoms without legitimate authority or justification?

The grave mistake the FCC is making in the broader international context is claiming that private companies are the primary threat to Internet freedom and free speech, and not governments. History and common sense tell us only Governments have the effective coercive power to dictate real censorship.

The FCC is effectively declaring “open season” on well-established Internet freedoms.

It is perversely providing legitimacy, justification and political cover for undemocratic countries like China and Iran to hunt down dissidents online and censor free speech while using the Orwellian doublespeak of regulating to “preserve an open Internet.” Undemocratic regimes are always looking for “openings” and excuses to further crack down on their people’s freedom of speech and assembly. Surely, the FCC must appreciate that internationally, actions speak louder than words.

The U.S. has a unique responsibility to not screw up the Internet’s freedoms. As the country that invented, privatized and promoted a free, open and competitive Internet, the world has long taken its cue from America on Internet policy. President Clinton whose administration oversaw the privatization of the Internet, said:

For electronic commerce to flourish, the private sector must continue to lead. Innovation, expanded services, broader participation, and lower prices will arise in a market-driven arena, not in an environment that operates as a regulated industry

The FCC’s proposed “Open Internet” regulations are illegitimate. First, they offend constitutional due process in that they assume companies are guilty of anticompetitive behavior until proven innocent; the FCC would regulate roughly 2,000 companies, for what one has admitted it did, and for what the FCC alleges another has done. Second, they offend constitutional equal protection in that they treat similar companies very unequally. Third, they offend constitutional protection against Government takings because they ban competitive companies from pursuing business models that are legal today. Fourth, they offend constitutional free speech because the FCC apparently does not agree with the Supreme Court that companies have constitutionally-protected freedom of speech.

The FCC’s proposed rules also overstep the FCC’s legal authority. Without congressional authorization of net neutrality legislation, the FCC is granting itself near limitless jurisdiction over the Internet. Moreover, the FCC’s proposed rules are arbitrary and capricious. They would arbitrarily reverse FCC precedent and factual determinations; arbitrarily move the competitive goalposts mid-game; and regulate competitive companies’ business practices more strictly than any monopoly in the last 75 years.

Further undermining America’s credibility to lead on the Internet policy going forward is that the proposed Internet regulations are not justified. They are a solution in search of a problem. The near perfect voluntary industry compliance over the last several years simply does not warrant a permanent ban on legal business behavior. To top all this off, the FCC has offered no evidence of market failure to justify regulating this competitive marketplace.

In sum, America risks both Internet freedoms and its Internet policy leadership when it proposes such a radical policy change without the legitimacy of constitutional or legal authority or the justification of facts. International Credibility 101 says: if you want others to follow your lead, be worthy of following.

Americans know from experience that private companies competing for customers deliver better service than Government. Who thinks the Government can do a better job than private companies in designing, building, and managing broadband Internet networks? Who thinks the Government can run the Internet better, faster, cheaper, and more innovatively than private networks do now?

The pretext for this new government micromanagement is — that without new Federal regulation — private companies might not treat all broadband Internet packet deliveries equally and might even discriminate against certain Internet packets by delivering them slightly slower than others or not even deliver them at all. The proposed FCC regulations would force all different types of Internet packets to be delivered the same, would empower the FCC to monitor all Internet packet delivery for “neutrality,” and put the Federal Government in charge of how private companies design and manage their broadband Internet networks.

This FCC proposal is as silly as if the Federal Government regulated the billions of packages that Fedex, UPS, DHL and local delivery services deliver every year, because they might deliver some packages slightly slower than others, or because they might refuse to deliver un-economical or unsafe deliveries. Does the Federal government not have anything better to do than monitor the mind-boggling minutia of Internet packet delivery times for fairness? How many private Internet delivery options will survive, if the Government forces all of them to be like the FCC’s inefficient public option?  

Why not let urgent broadband Internet packets be delivered before non-urgent Internet packets? Why not let private companies charge more for faster delivery, for bigger packages, or to guarantee delivery of fragile or high priority packages? Why not let private companies protect their customers, networks and businesses by refusing to deliver particularly burdensome, dangerous or harmful packages?

Who cares if private delivery services deliver one Internet package slightly ahead of another in the marketplace? What people care about is efficiency, speed, low-cost and a diversity of choice.

The Internet is not broken or in need of FCC fixing. Why gamble unnecessarily with one of the only healthy and stable sectors of the economy? Why tamper with what works exceptionally well? Why propose a solution in search of a problem?

Simply, who believes the Federal Government can run, build and improve the Internet better than all the private companies that have built and operated the Internet to date?