Congress — Yes, Congress — Can Take The Politics Out of Net Neutrality | Commentary

Posted February 6, 2015 at 1:57pm

I have argued that President Barack Obama has won the net neutrality debate, but the most important question facing him and the Congress is how he wins.

If we’re going to make net neutrality the law of the land, then the Congress should move quickly on a compromise legislative solution. The alternative is an endless meandering through the courts that would leave everyone who uses or provides the Internet uncertain of what the ground rules are for years to come.

Even Tim Lee of Vox, no friend of the Internet providers, has taken up the mantle, agreeing that new legislation is the best way to solve the problem for good. Apparently, support for the idea of measured, bipartisan legislation is gaining steam.

The reasons why are evident.

First, legislation would sweep aside jurisdictional arguments that bedevil the Federal Communications Commission. Reclassifying the Internet as a Title II service (the alternative to legislation if you want net neutrality) will have a hard time — and a long road — surviving a challenge in court. That’s because reclassification means arguing that the broadband Internet ought to be regulated like the crank phone that Timmy’s mom used in “Lassie.”

But Congress can cut this Gordian knot with ease, using its obvious power to pass new rules that create strong net neutrality policy without the excess baggage and uncertainty caused by Title II. Why go through years of litigation and the risk we end up right back where we started if the court sees things differently than the FCC (which it has already done twice on this very issue) when a simpler, cleaner, more stable answer is ready at the hand?

Second, rules passed by the FCC pose a problem that net neutrality advocates and, specifically, their Democratic allies on the Hill, should fear — they could be changed when the composition of the FCC changes. A 2016 Republican president would likely appoint an FCC chairman who would jettison the rules. Not going to the Congress for authority to impose neutrality is tantamount to an invitation — a double-dog dare — to do so. In contrast, a legislative fix would be far more enduring and stable, whatever direction the political winds should blow.

Finally, congressional action and compromise might bring some responsibility to the Internet policy debate. When you rail against “regulators” or try to put a black hat on one party or another, it’s easy to say we should offer broadband as a public utility (forget what that costs), or that we should do away with the FCC (and throw consumer protection to the winds), or whatever other over-the-top idea pops into your head. But a bill requires a vote and that means going on the record. It’s time for all parties in the Internet policy debate to take responsibility and make clear what they really want and what they’re really for.

We’ve seen too much politics in the net neutrality debate already. It would be amazing to think that the Congress, of all places, could be the place where we rise above politics and enact a straightforward, responsible solution.

Dr. Ev Ehrlich served as undersecretary of commerce under President Bill Clinton. He is now president of ESC Company, a Washington, D.C.-based consulting firm, and a fellow at the Progressive Policy Institute. Want More Stories Like This? Subscribe to our Thought Leaders Newsletter.