The Wrong Way and the Right Way on Net Neutrality

March 21, 2019

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Over the years, there have been multiple congressional attempts to secure open Internet protections. Yet another bill, this one crafted by Democrats in both the House and the Senate, is known as the “Save the Internet Act of 2019.” On introduction, we at ITIF called this bill a non-starter because it returns broadband to a Title II classification. We continue to have these concerns: Nothing in the proposed legislation would prevent a future FCC from applying a slew of legacy regulations designed for monopoly phone service or unpredictably expanding regulation using the broadest powers of Title II (Sections 201 and 202) that the Open Internet Order relied on.

Representative Mike Doyle has taken the lead on promoting this bill, taking to CSPAN’s The Communicators, conducting numerous interviews focused on the proposed legislation, and chairing a hearing on the issue. First, I would like to commend Rep. Doyle for taking leadership on this issue. He has learned the details of net neutrality policy, and this level of ownership and expertise from both staff and members is crucial to resolving a complex policy issue. However, he and other supporters of this bill downplay the role and scope of Title II and the dramatic changes to the broadband regulatory framework his legislation would functionally allow.

Today the FCC has no clear authority to establish net neutrality rules in a way that is not politically controversial. Yes, there is the higher order uncertainty about the FCC’s discretion to classify broadband as either a common carrier under Title II of the Communications Act or as a more lightly regulated information service under Title I. This the “ping-pong” problem that has seen dramatic swings in the fundamental framework for regulating broadband. But this isn’t the only problem—simply reinstating the Open Internet Order in statute doesn’t cut it.

Resurrecting the Open Internet Order brings back all the uncertainty and possibility of extensive regulatory intervention that stifles innovation and investment. There is a false idea out there that, because the FCC forbore from applying some sections of the law, that potential slide into true utility regulation doesn’t have a real impact on business decisions looking five or ten years down the road.

First, the Open Internet Order famously forbore from apply those regulations “for now,” and in no way tied the hands of a future commission. Legislation that simply reinstates that order would maintain the FCC’s wide discretion to take laws written for the monopoly phone era and apply them to broadband, bypassing the legislative process. Representative Doyle has asserted multiple times that “[t]he rest of the 27 chapters and over 700 regulations of Title II that are either not applicable or things that the telcos were concerned the FCC could do to them, we took out.” Looking at the text of the bill, this does not appear to be the case.

Nothing in the bill that would prevent a future FCC from applying the totality of legacy Title II regulations to broadband. The bill does indeed attempt to tie the hands of a future FCC from reinstating the Restoring Internet Freedom Order, but absolutely nothing that would prevent future application of rate regulation or mandatory infrastructure sharing that was raised by the Open Internet Order. It is troubling that Rep. Doyle appears to be intending to take those possibilities off the table, but the text of the legislation absolutely would not do so.

Second, and probably more importantly, the sections of Title II that the FCC retained in the Open Internet Order are the most capacious, giving the FCC all the authority it would need to do virtually anything it wanted. When asked if his legislation would rely on the controversial Title II, Doyle said “it will not include Title II in its entirety, there will be parts of Title II in it.” Those parts that would be in it are the broadest authority in all of Title II—Sections 201 and 202. These are the provisions of the law that authorize the FCC to regulate rates and impose onerous infrastructure sharing regulations.

Far more promising than half-hearted attempts to whittle Title II down to size is a good faith attempt at bipartisan compromise. ITIF was cheered by news that Sens. Kyrsten Sinema (D-AZ) and Roger Wicker (R-MS) are working to craft “a modern, internet-specific framework that encourages the freedom and innovation that make the internet the vital tool it is today.” That is exactly what we have argued is needed.