Netflix lobbies for Net Neutrality, instantly regrets Net Neutrality

Corporate executives choose their words carefully at investor conferences hosted by the large investment banks, and analysts listen closely to decide whether to drive share prices up or down. Presentations are preceded by required securities-law disclosures, heightening the pressure to speak only carefully considered thoughts.

With that in mind, consider what David Wells, chief financial officer of Netflix , said last week at the annual Morgan Stanley Technology, Media and Telecom Conference. He disclosed that Netflix, one of the few companies that advocated the most extreme form of Internet regulation, had lobbyist’s remorse only a week after the Federal Communications Commission voted to replace the open Internet with Obamanet.

“Were we pleased it pushed to Title II?” Mr. Wells said to investors. “Probably not. We were hoping there might be a nonregulated solution.”

Title II is the part of the Communications Act of 1934 that bureaucrats used to exert near-total control over the AT&T telephone monopoly. The FCC recently did President Obama’s bidding by voting to impose that micromanagement on the Internet. The FCC will decide what prices and other terms online are “just and reasonable.” The agency added a new “general conduct” catchall provision giving itself oversight of Internet content and business models.

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. Netflix PR handlers claimed that Mr. Wells was just “trying to convey how our position had evolved.” But the company’s actions support Mr. Wells’s words. Last week, Netflix violated a core tenet of net neutrality when it launched its service in Australia as part of a “zero rating” offering by broadband providers, which excludes its video from data caps. Net neutrality advocates want to outlaw such deals. Netflix shrugged off this objection: “We won’t put our service or our members at a disadvantage.”

Last year National Journal reported that Netflix was “relishing” its role as the lead lobbyist for net neutrality, “not only advocating a position that would protect its profits,” but “also earning goodwill from web activists and liberals.”

Today Netflix is a poster child for crony capitalism. When CEO Reed Hastings lobbied for Internet regulations, all he apparently really wanted was for regulators to tilt the scales in his direction with service providers. Or as Geoffrey Manne of the International Center for Law and Economics put it in Wired: “Did we really just enact 300 pages of legally questionable, enormously costly, transformative rules just to help Netflix in a trivial commercial spat?”

Ironically, Netflix could end up the biggest loser with a regulated Internet. The FCC did not stop at claiming power to regulate broadband providers. It will also review the interconnection agreements and network tools that allow the smooth functioning of the Internet—including delivery of Netflix videos, which take up one-third of broadband nationwide at peak times.

Net-neutrality advocates oppose “fast lanes” on the Internet, arguing they put startups at a disadvantage. Netflix could not operate without fast lanes and even built its own content-delivery network to reduce costs and improve quality. This approach will now be subject to the “just and reasonable” test. The FCC could force Netflix to open its proprietary delivery network to competitors and pay broadband providers a “fair” price for its share of usage.

There’s no need for the FCC to override the free-market agreements that make the Internet work so well. Fast lanes like Netflix’s saved the Internet from being overwhelmed, and there is nothing wrong with the “zero cap” approach Netflix is using in Australia. Consumers benefit from lower-priced services.

The FCC still hasn’t made public its 300-plus pages of new regulations, but there is increasing opposition against changing the Internet as we know it. Last week John Perry Barlow, the Grateful Dead lyricist-turned-Internet-evangelist, participated in a conference call of Internet pioneers opposed to the FCC treating the Internet as a utility. He called the regulatory step “singular arrogance.”

In 1996 Mr. Barlow’s “Declaration of the Independence of Cyberspace” helped inspire a bipartisan consensus for the open Internet: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

The permissionless Internet succeeded beyond anyone’s expectations, becoming an unmatched outlet for creativity and innovation. Mr. Obama has defied the bipartisan consensus that made this possible. Unless Congress or the courts intervene, the future of the Internet will look like the past, when bureaucrats and lawyers, not visionaries and entrepreneurs, were in charge.

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