The Use and Abuse of 'Light-Touch' Internet Regulation

Abstract

The FCC recently repealed network neutrality regulations. In doing so, the agency claimed to be restoring the traditional “light-touch” deregulatory approach that had guided Internet policy successfully for decades. Today, this version of history—what I call the light-touch narrative—provides a key normative foundation for deregulatory policy. It also influences current interpretations of positive law. Indeed, the FCC’s legal authority to repeal network neutrality rules relies on statutory interpretations reflecting these historical assumptions. This article contends, however, that the light-touch narrative has become misleading because it relies on flawed understandings of the Internet’s history. It assumes that today’s Internet access providers are the legal equivalents of earlier data and dial-up service providers. As a result, policymakers are citing the deregulation of these earlier entities to justify deregulating modern access providers—an approach that is both normatively and legally problematic. To illustrate these problems, this article examines the origins and evolution of light-touch Internet regulation. It then explores the legal and policy implications of this history, particularly with respect to the FCC’s recent network neutrality repeal and its legal challenges.