One provider prioritizes its own content, steering online users to its affiliated sites and services. It monitors practically every click you make online, tracking you as go from one website to the next. And it has a stranglehold on small digital businesses, leveraging a dominant role in the online ecosystem to require each and every small business to pay excessive fees if they want American consumers to find them.

Such fears prompted the Federal Communications Commission to take up net neutrality—the concept, as creator Tim Wu put it, of an “Internet that does not favor one application over another”—yet again last Thursday. How? By reinstituting Obama-era public-utility-style regulation to internet service providers. Generally, the rules would prevent internet service providers (ISPs) from blocking or deprioritizing lawful online content.

You may recall the hysterics after the Trump Administration repealed those rules in 2017. CNN proclaimed the repeal of net neutrality would be “The End of the Internet As We Know It.” Others feared that without net neutrality, consumers would get the internet “one word at a time.” Late-night comedian Stephen Colbert did a segment called “R.I.P. The Internet,” and some feared the internet would fracture after the repeal. Needless to say, that parade of horribles did not materialize.

But here’s the thing: The company that prioritizes its own content, monitors your clicks, and charges excessive fees to small businesses isn’t an ISP that would have been subject to those rules, nor would it be subject to the rules the FCC is currently proposing. It’s Google—the search company that claimed to support net neutrality and repeatedly lobbied against its repeal.

The tech companies that most vehemently argued for net neutrality have been the most blatant violators of that same concept.

Apple imposes rents of up to 30% on small app developers through its App Store. If an app competes with an Apple product, it’s often kicked off the App Store with nary an explanation—or buried behind dozens of other apps that don’t actually do what the consumer wants. Google pays off other companies to ensure its search product remains dominant, and Gmail blocks emails from political candidates that the search giant doesn’t favor. Twitter dropped the New York Post for accurate reporting, and X has slowed access to rival sites such as Substack and Facebook.

When one of these companies wants you off the internet, you’re gone. Just ask free speech app Parler or any of the dozens of entrepreneurs that have butted heads with Big Tech.

The FCC’s proposed net neutrality rules, like their predecessors, cannot nor do they try to address these abuses. They instead place the net neutrality blame and burden on ISPs alone.

It’s why the FCC’s move here is a head scratcher. There hasn’t been one instance of an ISP blocking a website or slowing down access to any content consumers want to see since the repeal of the Obama rules. All of the net neutrality violations are happening on the tech side of the network—outside the FCC’s reach. The FCC is proposing rules that will not address any of today’s harms actually impacting internet users because the rules are exclusively for ISPs, not for the tech companies actually blocking and throttling content. Because they aim at the wrong targets, these rules will do nothing to promote net neutrality as originally understood.

There’s not even a market case for the FCC’s plan. Four companies control everything you see and do on the internet, and none of them are ISPs. Google owns more than 90% of search and 80% of the ad-tech market. Apple has an iron grip on iPhone users, a critical market for any small business. Meanwhile, the ISP market continues to diversify, with wireless companies competing for home broadband, cable operators entering the wireless market, and literally thousands of small ISPs competing to serve Americans in rural, suburban, and urban markets. So why do we need a regulator here and not for tech?

For tech companies, the FCC’s version of net neutrality is a convenient distraction for policymakers who might otherwise make real progress on bipartisan issues of concern. After all, lawmakers have come together to challenge Google’s dominance in the ad-tech market with the AMERICA Act and Apple’s control of the App Store with the Open App Markets Act. Those and broader bipartisan bills like the Protecting Kids on Social Media Act and the Kids Online Safety Act have gotten real momentum. Given all of this, why wouldn’t tech welcome the FCC’s partisan theatrics?

If we are going to have another net neutrality debate, then the FCC is an inappropriate venue for it because it cannot use a holistic approach to ensure that all market participants in the internet stack are following the same rules. Only Congress can create a net neutrality framework that applies to the full stack so that whether a company offers internet access, provides cloud storage and processing, hosts an app-store, or manages an operating system, it cannot block or throttle the lawful content you want to access. 

The FCC is ill-equipped to shepherd in the promise of net neutrality given all of its legal constraints. Congress will need to step in to protect true net neutrality.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.