Net Neutrality: Ending the Game of Political Soccer

The Need for Congressional Intervention in the Net Neutrality Debate

In the absence of definitive legislation on the issue, the net neutrality debate has
produced partisan regulatory swings that inhibit investment by broadband providers.
The author, a former U.S. Representative, urges the Congress to enact legislation
reinstating the light-touch regulatory regime in place until 2015 and establishing
a sense of permanence that would build investor confidence in the broadband market.

Rick Boucher

By Rick Boucher

Rick Boucher was a member of the US House for 28 years and chaired the House Energy
and Commerce Committee’s Subcommittee on Communications and the Internet. He is honorary
chairman of the Internet Innovation Alliance (IIA) and head of the government strategies
practice at the law firm Sidley Austin.

“Net neutrality”
is back on the political agenda. It never really went away, of course, but new FCC
Chairman Pai’s recent actions have brought it to prominence once again.

Net neutrality is important for our broadband future, and so is a sufficient level
of investment to ensure that our digital infrastructure keeps up with the ever-growing
demand for Internet access, particularly mobile data.

Utility-Style Regulation

Remember that back in 2015, the FCC under former Chairman Wheeler reclassified broadband
to treat it as a 1930s common-carrier service—a “Title II service,” in Communications
Act terms—rather than as an “information service,” the status it had enjoyed since
the Clinton administration. Mr. Wheeler’s action reversed decades of FCC practice
under the old rules, when investment in broadband flourished. Now, broadband providers
face the same rules that governed monopoly telephone service from a bygone era. That’s
what reclassification means.

Title II gives the FCC broad authority to set prices, terms and conditions. Not knowing
what new requirements and restrictions will be imposed on them next, broadband providers
today face a high level of regulatory uncertainty, as a result of which network investment
declined over the past two years.

Alternatives to Title II Regulation

Supporters of reclassification rely on a crucial—and mistaken—assumption:
that net neutrality guarantees can only be achieved by treating broadband as a telephone
service. That’s just not right.

An earlier version of FCC net neutrality guarantees, adopted in 2010 by the FCC under
Julius Genachowski, President Obama’s first FCC Chairman, did not rely on “Title II”
classification, yet protected both openness on and investment in the internet. At
the time, I chaired the House Communications Subcommittee and joined with other Democrats
in applauding the FCC for its strong stand for net neutrality.

Why Congress Needs to Act

Congress should provide a permanent statutory solution to a debate that has now raged
for over a decade. A simple win would codify the strong net neutrality assurances
contained in Chairman Genachowski’s 2010 rule and declare that broadband is a Title
I information service, returning it to the lightly regulated status it enjoyed since
the Clinton administration.

Without Congressional intervention, net neutrality policy will continue in an endless
back-and-forth. Every party change at the White House will produce an FCC that shifts
net neutrality rules to its favored terms. One can foresee a never-ending shuttle
between Title I and Title II, causing carriers, not knowing what will come next, to
hold back needed infrastructure investments. There’s also no assurance that each regulatory
change will maintain the net neutrality guarantees on which internet users rely.

Like so many issues in Washington these days, it’s political football or political
Actually, the best analogy may be political soccer—each side trying to kick the ball
as far towards the other team’s goal as possible, and the teams running frantically
in that direction. But the need for net neutrality guarantees and the need for broadband
investment are too important to be treated like a sport.

This really should be the ultimate non-issue, and an unusually solid candidate for
bipartisan legislating. Respect for net neutrality along the lines of the FCC’s 2010
order is now commonplace among broadband providers. It has been fully integrated into
their business operations, and Internet content providers rely on that openness in
order to reach their customers.

The Genachowski rule achieved the ideal balance: strong network neutrality guarantees
along with investment-enhancing Title I information service status for broadband.
Congress can now achieve that balance with statutory permanence and at last put to
rest the most contentious Internet policy debate of the last decade. Edge providers,
carriers and Internet consumers deserve no less.

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