Less Heat, More Light: Finding the Right Path Forward for Net Neutrality

Doug Brake, senior analyst for telecom policy at ITIF, opened the event, discussing some potential outcomes of FCC’s ongoing Restoring Internet Freedom proposed rules before turning the floor over to the speakers for opening remarks.

Larry Downes, a Senior Industry and Innovation Fellow at Georgetown Center for Business and Public Policy, opened by saying that open Internet principals are generally a good idea, but that Title II is far too clunky to use as the basis for those rules. Additionally, while he believed that a reversal of the 2015 Open Internet Order was the best way forward, he agreed that anything other than legislation is more or less a band aid. Larry argued that legislation should be as minimally invasive as possible, or risk unintended consequences.

Nicol Turner-Lee, a Fellow at the Center for Technology Innovation at the Brookings Institution, started her remarks by stating that the internet has fundamentally changed since the initial coining of the term “net neutrality” in 2003. She noted that the FCC is working with an outdated Communications Act, that Title II was heavy-handed, but was the only real hook for bright line rules under the current Act. She argued for the FCC retaining authority over technical matters like reasonable network management, and not giving this space over to the FTC. She also argued for legislation giving the FCC properly tailored authority here should also include a rule focused on consumer protection.

Scott Wallsten, the President and Senior Fellow at the Technology Policy Institute, primarily focused on how net neutrality eliminates an entire dimension of innovation, especially impactful on latency-sensitive services. He pointed out that net neutrality rules are essentially common carriage—the ideas underpinning this debate are not just 10 years old, but over 100 years old. He described the historical challenges with different experiments in common carriage, making the case that this is not a road we want to go down with the Internet. Rather, he argued traditional antitrust enforcement as the right approach.

Scott noted a “provocative observation” regarding Title II: It is somewhat odd that network operators are opposed to common carriage, considering they would have a guaranteed profit and protection from new entrants.

During the Q&A portion, the panel further discussed the general conduct rule, the limits of antitrust, competition policy, and the potential for a legislative solution.

On the question of a general conduct rule, Nicol pushed to retain something like a flexible standard as it allowed the Commission to examine unanticipated services. Larry noted that our little experience with the general conduct standard at the FCC was “very troubling,” that the investigation had no real guidelines, continually expanded in scope, and ultimately got away from the commission. Scott noted that bright-line rules usually aren’t perfect and he much preferred a flexible standard.

When discussing the limits of antitrust enforcement, Larry stated that while he supports antitrust enforcement new legislation giving either FTC or FCC enforcement authority over bright line net neutrality rules would be more certain and long term. Scott also supported antitrust enforcement, and noted that the FTC is a much less politically charged venue for potential enforcement actions. In response, Nicol noted that all sorts of different issues get conflated when users talk about net neutrality issues, but the popular response is to blame the ISP, making it more difficult to find good solutions.

On competition policy, Nicol noted that consumers generally do not care about competition policy generally, but are rather focused on the choices that are available to them. Scott felt that net neutrality generally isn’t the ideal lever to pull on competition policy, and that there are many alternatives to it. Larry remarked on the wide gulf between how competition is considered in D.C. compared to outside the beltway. When it comes to the net neutrality debate, many advocates focus narrowly on specific services, whereas analysts of business strategy take a far more holistic approach, recognizing competitive pressure comes from a variety of sources.

Finally, the panelists generally agreed that legislation which authorized something like the 2010 Open Internet Order would be a reasonable compromise, but expressed some disbelief that it would come anytime soon.