With the 116th Congress sworn in, the new House majority has a unique opportunity to make good on a campaign promise and lock in permanent protections for net neutrality. The new Congress was the death knell for last session’s efforts under the Congressional Review Act to undo Federal Communications Commission Chairman Ajit Pai’s broadband deregulation. But another, far more achievable, and long-lasting solution to the net neutrality impasse is staring us in the face.
Republicans claim that repealing the Obama-era net neutrality regulations was always about the incredibly broad discretion the FCC claimed for itself in the rules — not actually about preventing Internet service providers from blocking or throttling competing online services. By classifying broadband like a utility under Title II of the Communications Act, the FCC gained legal powers designed for the old monopoly telephone system, powers that are a poor fit for today’s broadband market. It was this legal classification that was anathema to Republicans — much more so than the open Internet rules themselves. Not surprisingly, repealing them was the top goal for the new FCC in 2017.
Crucially, the CRA mechanism Democrats have backed would have reinstated the flawed Title II-style rules. Many correctly predicted the CRA as doomed from the start. But it is also why agreement on basic open Internet rules is within easy reach. Net neutrality may be popular, but net neutrality through Title II is a non-starter if your goal is permanent protections – not the current on-and-off again rules, depending on which party sits in the White House.
No doubt in the coming weeks representatives in the House will introduce a bill to do functionally the same thing as the CRA: reinstate the 2015 order, with all its weighty Title II baggage. Republicans will no doubt oppose. Such a bill would almost certainly fail in the Senate, even if for some reason Majority Leader Mitch McConnell (R-Ky.) should put it on the floor. What’s more, the president is unlikely to sign something that gives the FCC expansive power to regulate broadband like a utility. We can and should do better.
Instead of this political posturing, Democrats should draft a bill that sets in stone strong net neutrality prohibitions on blocking and throttling. This would make good on a campaign promise and permanently preclude the parade of horribles net neutrality activists warn are just around the corner.
Republicans should take this deal. Republicans argue that ISP blocking and throttling to shakedown competitors or squash free speech isn’t a realistic threat, but why not ban it anyway? And even though there are good arguments that the technical limitations of the Internet justify some wiggle room on prioritization, that relatively minor issue should not stand in the way of establishing stable protections for future online commerce and speech. Republicans should seek common ground on actual open Internet issues to head off the return of Title II and its expansive regulatory power over the Internet if a Democrat wins the White House in 2020.
One possible way to find this common ground is to tie net neutrality to broadband access, digital literacy, and infrastructure deployment. Instead of focusing only on jurisdiction, expanding the terms of the debate opens up more room for compromise. Last term, the House Democrats explored broadband infrastructure deployment support with their Leading Infrastructure for Tomorrow’s America Act. By giving up on utility-style rules like forced network sharing or price regulations, Democrats could negotiate for more funding for digital literacy programs or rural broadband deployment than budget-conscious Republicans might otherwise accept.
There will of course be some advocates who resist any capitulation on Title II rules. Anyone who resists a deal or who says “wait for the courts” probably either has a strong interest in this fight being drawn out forever (fundraising from the base), or actually does want the full panoply of utility regulations imposed on broadband — in which case this fight will indeed go on forever.
Net neutrality — the rules and norms supposedly core to the character of our predominant communications tool — should be a mainstream political issue warranting pragmatic and permanent policy solutions. Both parties have the opportunity to achieve a real victory by locking in net neutrality protections and expanding infrastructure spending for broadband deployment, even in the midst of divided government and tribal partisanship.
Doug Brake is the director of broadband and spectrum policy at the Information Technology and Innovation Foundation.
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