Washington, Network Neutrality and a Potential Resolution

Network neutrality is the principle that the telephone or cable company that provides you with access to the internet should be neutral as to how you use that access and which companies, people and services you engage with. In practice that means that the company that gives you access to the internet should not be able to block, mess with or demand a special fee from any company, service or speaker in exchange for privileged access to you.

Passions have run high in Washington and among interested communities in the United States on network neutrality for years. Today those passions are at a fever pitch with civil society and internet based companies coming together to protest as the Trump-appointed Federal Communications Commission chairman moves to repeal network neutrality protections promulgated under former President Barack Obama’s FCC.

So what’s the end game of this dispute? I support network neutrality and the rules as the Obama FCC Democratic majority promulgated. But I recognize that there may be benefits to consumers, particularly low-income consumers and the public interest that might warrant exemptions to strict network neutrality rules. We would all be better off if Congress could agree on what those rules and exceptions should look like, but repealing Title II protections will not help us get there. Much like you have seen the FCC privacy rules replaced with nothing, having polarized the parties, and made deliberation toward compromise more difficult, the repeal of Title II rules will do the same thing.

If FCC Chairman Ajit Pai moves forward with repeal and argues that no rules are necessary because of existing antitrust law, a position that not even industry or many Republicans in Congress hold any longer, he will force a partisan FCC vote, box in congressional Republicans into that position, polarize the debate even further, and ensure an equal and opposing reaction from Democrats. How is that different from what former FCC Chairman Tom Wheeler did? On substance, as opposed to process, the Wheeler rule is much closer to the compromise position that most of industry and members of Congress embrace. The Pai position of no rules are necessary and antitrust FTC oversight is sufficient is well outside the potential zone of bipartisan agreement.

That would undermine years of deliberation. After more than a decade of debate, the parties are actually on substance closer to each other on network neutrality than when Pai and I were young staffers on opposite side of the aisle in the Senate in the early 2000s. The internet and the power that internet service providers have relative to internet companies have changed, and there is a vibrant civil society following these issues. Among lawmakers who wish to reach a legal compromise, they all agree that blocking content, throttling it or deceiving customers about how the service works should all be legally prohibited, and they don’t really get much pushback from broadband internet service providers.

What remains unresolved, however, is whether cable and telephone network companies should be allowed to leverage their access to you. Should they be allowed to charge advertisers, content providers and online retailers for preferred access to your computer and mobile phone screens, or allowed to prefer their own content? On that, both policymakers and the parties are deeply divided.

Most of us who support network neutrality feel that such leverage should be blocked as a rule. We believe that a neutral network has worked and allowed applications and services to flourish while still enabling telephone and cable internet service providers to make healthy profits. If lawmakers feel that exceptions to this rule are necessary, they should develop a limited list of specific exceptions through bipartisan negotiation and write them into law. We can and should figure out a legislated compromise on what those circumstances would include.

Again, that will not be possible if passions are flared by partisan repeal of the existing rule and an assertion that no rule is necessary. Repealing network neutrality protections without replacing them with something that has bipartisan support at the same time will poison the environment for potential philosophical resolution and compromise to the detriment of network operators, internet innovators and consumers alike.


Daniel Sepulveda served as ambassador, deputy assistant secretary, and coordinator for communications and information policy at the State Department from 2013 through Jan. 20, 2017, after 12 years as a senior aide to now-former Sens. Barbara Boxer (D-Calif.), Barack Obama (D-Ill.) and John Kerry (D-Mass.)

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