Simington's 1st Speech Cites Net Neutrality, Internet 'Gatekeepers'

Simington said he's open to discussions with anyone about net neutrality, but he believes Title II regulation of the internet would chill infrastructure buildout. That eventually would lead to government becoming “the infrastructure financier of first resort” and "politicizing a major industrial sector.” Arguments in favor of Title II that are based on fear of monopoly grow “less applicable with every year” due to new tech and providers entering the market, Simington said, though he said the concerns of those raising the argument are real.

Net neutrality arguments about internet gatekeeping have implications beyond ISPs, Simington said. "For many of us, search engines, app stores, e-commerce sites and social media accounts are more fundamental components of our online activity than whichever ISP we may happen to subscribe to,” he said. “A public raised on certain standards of public speech and platform access feels betrayed and bewildered by the new role of online companies in the dissemination of speech.” The commissioner said (prepared remarks here) that such companies "are burdened by unclear or contradictory legal and regulatory guidance.”

Simington’s focus on non-ISP gatekeepers stems from his support of government regulation against social media companies, said TechFreedom President Berin Szoka in an interview. Simington has to “contort” himself to support common carrier-style regulation of social media companies while simultaneously opposing it for ISPs, said Szoka, who vocally opposed FCC action on Section 230 of the Communications Decency Act: “He is in exactly the awkward position everyone figured he would be in.” Simington didn’t comment further, and neither did the FCC or other commissioners.

Szoka agreed with Simington that his status as a minority commissioner doesn’t prevent him from influencing policy. “You can’t underestimate how much influence minority commissioners have as thought leaders,” Szoka said. Simington is “using the bully pulpit” to push for “social media neutrality,” Szoka said. “This is a major social fault line and flashpoint,” said Simington. “We can’t let the history of telecommunications law be what holds us back from a resolution.”

Simington appears to have an open mind, but “Title II advocates would have a steep hill to climb to persuade him that Title II regulation should be imposed” in its commonly understood form, Free State Foundation President Randolph May told us. Simington said he could see himself voting for Title II regulation only if the agency would forbear all its provisions, essentially making it exactly like Title I. Simington said the definition of net neutrality has changed many times over the issue's history. “By highlighting this, perhaps Commissioner Simington was signaling that possibly there is a way forward that might achieve consensus at the Commission,” May emailed.

“Most of the issues that I am raising here​​​​​​​ are the kinds of issues that we would want decided by Congress, not the FCC,” Simington said. “Congress may well decide that for some these issues, regulatory competency resides more properly with other agencies, such as the FTC.” He said it's time for legislators to look at “refreshing” the 1996 Telecom Act. “Video, for example, faces very different treatment depending on the sourcing entity and the physical means of delivery. Telephony takes place seamlessly between copper wires and apps,” Simington said. Relations between the FCC and his former agency, the NTIA, are “positive” at the moment, but the commission could do a better job on interagency relations, he said.