With the new Chairman Ajit Pai taking the helm of the Federal Communications Commission, this is a time of transition for the agency. Pai has made clear his priorities: closing the digital divide by spurring high-quality rural broadband deployment, clearing out dated regulatory underbrush and improving FCC processes. He has made quick work to tuck in on these issues. But even with these anodyne objectives, the chairman has been met with controversy. Net neutrality activists are eager for a fight (and a fundraiser), and many in the skeptical, click-keen press are happy to paint the new FCC in as stark of terms as possible.
For example, take Pai’s recent comments that he wants to “fire up the weed whacker” to pare back the “regulatory underbrush at the FCC.” Nearly every story written about him in the last few weeks quotes this provocative line, before immediately pointing to net neutrality. The fundamental regulatory framework for broadband is not “regulatory underbrush.” The targets for Pai’s “weed whacker” are not big-ticket items, but legacy, outdated regulations that perhaps made sense at the time but now lay forgotten. Consider the first regulation clipped: By bipartisan vote, the commission removed a 1973 requirement that broadcasters make openly available all correspondence with the public. I say whack away.
But there are subtler ways in which activists are attempting to undermine Pai. Consider the concerted effort to tie the new FCC to President Donald Trump, tapping into an already-energized protestor base. Of course Pai was elevated to chairman by Trump, but he was initially nominated to the commission by former President Barack Obama, and his views are not particularly “Trumpian.” He was the expected, mainstream pick, and his policy positions are mainstream Republican positions. Regardless, many in the press are happy to oblige this tying, because, admittedly, “FCC Closes Inconclusive Free Data Inquiry” doesn’t have the same ring as “Trump’s F.C.C. Pick Quickly Targets Net Neutrality Rules.” In short, much of the immediate reaction to the new FCC leadership was not well grounded in reality.
But all this is prelude. At some point Pai is going to have to dance with the elephant in the room. Congress has now explicitly asked the FCC to play its open internet hand first. Pai, along with the Information Technology and Innovation Foundation, is a vocal critic of the particular legal mechanism the FCC used to establish its open internet regulations — Title II — and he has even expressed skepticism of the need for any rules. But the concerns raised in his thoughtful and precise, if lengthy, dissents have always been more about process, limitations on FCC authority, and rule of law, arguing that it is Congress who should craft this compromise.
In truth, this fight is much more about the legal authority the FCC claims for regulating broadband, and its long-term implications, than it is about the open internet. On the one hand, we could return to the prior regulatory structure established under former President Bill Clinton, with the FCC relying on light-touch rules, voluntary codes of conduct, and antitrust-like enforcement to oversee a by-and-large competitive market of different technologies innovating to offer similar services. On the other, we can continue in the direction former FCC Chairman Tom Wheeler laid out toward a heavily regulated utility service.
I fear instead of a balanced discussion, the forthcoming net neutrality fracas will exceed even the toxic highs of 2014. With Republicans in the driver’s seat, net neutrality advocates — rightly or wrongly — are preparing to lose everything they hold dear, maintaining a “damn the torpedoes, full steam ahead” attitude.
Activists see Title II as not just the grounding for “the strongest net neutrality rules ever,” but also their only hope to establish broadband as a heavily regulated utility service. For this reason — and not because it is necessarily the best way to ensure a continued open internet — several of the loudest net neutrality noise machines have already staked out Title II as their hill to die on. Compromise is for the weak.
This false narrative of net neutrality as monolith — Title II and the open internet as one in the same — does a great disservice to finding a workable mix of norms, regulations, and market forces that will drive continued permissionless innovation and investment throughout the entire internet ecosystem.
“Neutrality” in the networking context is a category error — not just a bad idea for long-term innovation, but unenforceable and conceptually unworkable. But too often it is rhetoric, not engineering and economics, that determines the outcomes of policy debates. Instead of the strongest possible rules for “neutral” networks, we should talk about ensuring a fair, open playing field for competition and new entrants, about no one “picking winners and losers,” about unintended consequences of particular network management practices. We should acknowledge some applications and their users would truly benefit from prioritization or quality assurance offered on fair terms. But abstract “neutrality” is not a hill worth dying on, and neither is Title II.
Yet no matter how much we and many others have tried to explain this over the now decade-long debate, no minds appear to have been changed. The problem is net neutrality is more religious war than policy discussion, and, with accusations of “alternative facts” already flying, it’s unlikely the gulf between the two sides is closed any time soon. We need some way to break this logjam; I hope Pai is up to the task.
Doug Brake is a telecommunications policy analyst at the Information Technology and Innovation Foundation, a science and tech policy think tank.
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