The Senate and House are holding hearings today on a legislative proposal to prevent Internet service providers (ISPs) from blocking or throttling online traffic. It is encouraging that the bill’s sponsors, Sen. John Thune (R-S.D.) and Rep. Fred Upton (R-Mich.), now recognize that net neutrality is a legitimate public policy concern rather than a “solution in search of a problem,” as Upton, chairman of the House Energy and Commerce Committee, described it last year. However, as is often the case in policymaking, the devil is in the details.
The bill’s proposed rules — no blocking, no throttling and no paid prioritization — are a good first step. But the bill doesn’t stop there; it goes on to strip the Federal Communications Commission (FCC) of crucial legal authority that protects consumers and small businesses on the Internet. The bill’s rigid framework would significantly limit the FCC’s ability to adapt to evolving consumer harms. Moreover, it would give the commission no ability to interpret its new, limited statutory mandate — a significant departure from current regulatory practice for an agency with rule-making power. For a bill that on its face would afford many of the same protections that the FCC is currently considering, the primary goal appears to be preventing the agency from reclassifying broadband under Title II of the Communications Act.
{mosads}However, fears about reclassification are misplaced, particularly in the context of the narrow application of Title II proposed by many in the FCC’s record. Just last week, Sprint said that Title II would not harm investment in broadband infrastructure. Contrary to the cable industry’s discredited claims, Title II is a light-touch approach that has worked well in other communications sectors for decades. Congress does not need to straitjacket the FCC’s Title II authority — to quote Upton, that’s a solution in search of a problem.
Making matters worse, the legislation would leave the FCC powerless to protect consumers from other broadband harms not specified in the bill text, such as those that are already occurring in the interconnection context. When the FCC enacted net neutrality rules four years ago, few anticipated that ISPs would congest their own networks as a strategy to extract fees from edge services like Netflix. But that’s precisely what happened throughout 2013 and 2014, according to data collected by the Measurement Lab (a research consortium that includes the Open Technology Institute). The congestion harmed millions of Internet users whose connection speeds slowed to the point of unusability — but the FCC had no mechanism in place to help these consumers. This prolonged, damaging behavior by multiple ISPs demonstrates why the FCC needs the flexibility to respond to problems as they evolve.
The bill would also eliminate the FCC’s ability to help cities build broadband. This is a blow to municipalities that want to offer broadband service to their residents, particularly those currently restricted by state barriers to municipal broadband projects. The Open Technology Institute has consistently found that some of the fastest and most affordable broadband service in America comes from cities that have invested in their own infrastructure. Congress should be figuring out ways to support local government. Instead, the Thune-Upton bill prohibits the FCC from responding to communities that have asked for help.
Lastly, the legislation is vulnerable to litigation, contrary to what some of the bill’s proponents have suggested. The bill introduces new statutory ambiguities for the FCC to interpret, opening the door to unanticipated legal challenges. It also directs the FCC to enforce the bill’s new rules through case-by-case proceedings, a process that by design involves administrative courts, judges and new lawsuits. The lengthy nature of these proceedings can prolong contentious behavior.
As currently drafted, the Thune-Upton bill does more harm than good. Congress would better serve consumers and small businesses by allowing the FCC to move forward with light-touch net neutrality protections instructed by the robust regulatory record before it. Millions of Americans have asked for these rules, and the FCC is poised to adopt them on Feb. 26. Congress should let the FCC do its job.
Morris is senior policy counsel, and Stager is policy counsel, for the Open Technology Institute at the New America Foundation.