Net Neutrality Is Low-Hanging Fruit for Congress | Commentary
As is normal, the start of a new Congress resonated with pledges of bipartisan intention as legislative leaders expressed a determination to work across the aisle in addressing the nation’s challenges.
All too often, the opening week’s bipartisan good feeling devolves into partisan bickering. But, this year can be different. The tech arena is yielding a promising legislative opportunity with ample incentive for Democrats and Republicans to cooperate in the early passage of a bill that resolves one of the most contentious policy debates of 2015.
The issue is net neutrality, which has dominated the debate in tech policy circles since the U.S. Court of Appeals for the District of Columbia Circuit invalidated the Federal Communications Commission’s 2010 open Internet rule and tossed the matter back to the FCC. The rhetoric has sharpened and the partisan divide has widened as the time for FCC resolution of the matter approaches.
The nation’s broadband providers are concerned that during the FCC’s Feb. 26 public meeting, as a prelude to adopting a new set of net-neutrality rules, the agency will decide to treat broadband Internet access service as a public utility under Title II of the Communications Act. With justification, they claim that imposing monopoly rules from the era of rotary telephones on broadband services would stifle investment at the very time when we have a national goal to extend high-speed Internet service to 98 percent of the nation. Both Republicans and Democrats have echoed those arguments.
On the other side of the debate are claims of potential consumer harm that would result if the commission fails to reclassify broadband under Title II. Without Title II, they argue that the FCC lacks authority to prevent actions such as the blocking of websites, the slowing down of competitors’ content or the creation of Internet fast lanes that harm consumers or potentially benefit some content providers to the disadvantage of others.
The coming month, before the FCC acts presents a timely opportunity for Congress to step in and resolve the debate on terms that would seemingly be agreeable to Democrats and Republicans, broadband providers and consumers seeking continued access to robust high-speed Internet services. The FCC promulgated its open Internet rule in 2010 against a backdrop of consensus that had been reached through lengthy discussions among the stakeholders. While not all of the parties were in agreement, a critical mass of consumer groups, broadband providers and policymakers created the consensus that resulted in the FCC’s open Internet framework. It’s notable that among broadband providers, AT&T publicly expressed support for the rule, and it was ultimately approved with the FCC’s Democratic members voting affirmatively. Even more noteworthy is that in the four years since the open Internet rule was adopted, broadband providers have integrated its requirements into daily operations, and high-speed Internet access service has expanded absent consumer complaints of violations.
Narrow legislation that specifically empowers the FCC to re-promulgate the 2010 open Internet rule would simultaneously cure the D.C. Circuit’s objection that the FCC lacked the statutory authority to act, maintain the existing classification of broadband, avoid imposing new barriers to investment associated with reclassification, and assure that rules are in place that maintain Internet openness. While enabling the FCC to adopt the 2010 rule, the legislation would circumscribe the agency’s authority to impose onerous Title II regulations on broadband.
This approach would allow parties on both sides of the debate to claim victory and secure for each its major objective. It’s a rare opportunity for Congress to act in a bipartisan fashion while a substantial measure of bipartisan good intention remains. Let’s not let the moment pass.
Rick Boucher is a former Democratic congressman from Virginia who chaired the Energy and Commerce Subcommittee on Communications and the Internet. He heads the government strategies practice at Sidley Austin LLP and is honorary chairman of the Internet Innovation Alliance.