Today, like many others, we’ll file our reply comments in the FCC’s Open Internet proceeding.  While some are suggesting this deadline may be anticlimactic given the DC Circuit’s recent decision, I think it’s important—though perhaps for a different reason than most.  Here’s why.

Those who argue the need for significant government regulation always bear a special burden under our laws and Constitution—they have to prove their case.  Yet, after six months in the FCC’s comment process, and nearly six years of arguing the issue, proponents of extreme net neutrality regulation have failed utterly when it comes to making their case.  To be sure, they’ve used fear masterfully to create the impression of a crisis, and hyperbole to manufacture a threat.  But when the time has come to put-up-or-shut-up, those same groups have failed to identify any existing problem they are trying to solve, or indeed any specific conduct the government must act to correct.

Over and over again, we hear them cite the single instance where the FCC felt compelled to take action, namely the Comcast-BitTorrent case.  But one (1) example does not a compelling case make.  Indeed, thanks to the DC Circuit, the Comcast case ironically now stands for the opposite proposition—namely, that government must have compelling reasons if it’s going to substitute its judgment for that of the free market, and when it acts it must do so only with clear legislative authority. 

So, where are the unimpeachable facts that show net neutrality abuses or market failure?  Where are the facts that would support the radical government intervention pushed by some groups?  Where is the compelling data that would underpin the radical notion that the government must, for the first time ever, regulate the Internet?  One will search the FCC’s record in vain looking for even a shred of persuasive fact from the other side.

As John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”

As the FCC’s record in this proceeding clearly shows, the facts and evidence are overwhelmingly on the side of those who oppose extreme Internet regulation.  The resulting record even seems lopsided.  The other side, despite their bombast, has simply failed at the most basic thing they must do if they want government to intervene—they were unable to marshal any persuasive facts or evidence to justify their alarmist rhetoric or their even more breathless demands.

Yup, John Adams was right, facts are indeed stubborn things.  Now, let’s all hope that an FCC proceeding that began, like many, in the wake of emotion will now end, like most, with the triumph of reason.

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