Broadband is worth billions of dollars to big companies like Amazon, Apple, AT&T, Charter, Comcast, Facebook, Google, Hulu, LinkedIn, Microsoft, Netflix, Twitter, Uber, and Verizon, among others. That explains the nasty politics and parlance surrounding the debate on net neutrality, and the latest campaign to “save the internet.” Although not as compelling as the ceaseless Russia scandal, the net neutrality issue does have its share of partisan shenanigans, political sleight-of-hand and a smattering of fake news for flavor.
In an encore performance, late-night comedian John Oliver has reprieved an ill-informed, but no less snarky, propaganda campaign to influence the outcome. After all, he succeeded last time. Coupled with the call by some congressional Democrats to investigate the source of public comments supporting the Federal Communications Commission’s Restoring Internet Freedom proposal, we have now officially entered the silly season in Washington.
{mosads}By reopening the record on net neutrality, FCC Chairman Ajit Pai has resurrected the enemies and wounds of the past. The coming weeks promise a well-organized media campaign in support of Title II, led by averred consumer groups, and funded by deep-pocketed edge providers from Silicon Valley. Their slogans paint an overly simple picture in starkly misleading tones — Title II regulation gives life to the internet — anything else leads to its death.
While tailor-made for late-night talk shows, this dramatic line is historically untrue. The Internet was born, grew up and thrived for many, many years without Title II regulation. Moreover, it seems like the cable and telecom companies have accepted, albeit grudgingly, the three key principles of net neutrality. Their main gripe has been with Title II regulation, which according to most legal experts, allows the government to regulate rates for broadband internet service in the future, despite its non-binding dicta of forbearance.
Whether you call it the “open internet”, “net neutrality,” or “internet freedom,” three core questions remain: Is broadband Internet a “telecommunications” service or an “information service”? How much should the federal government regulate broadband? Under what legal authority can that happen? These simple policy issues have plagued the FCC for well over a decade, during which there have been several rulemakings, court challenges, and millions of comments filed by the public and interested parties.
Net neutrality advocates want the U.S. government to regulate the internet under decades-old rules originally designed for landline telephone rates. In November 2014, President Obama directed the FCC to reclassify consumer broadband service as a utility under Title II of the Communications Act of 1934. Following that mandate, then-FCC Chairman Tom Wheeler adopted the Title II order in March 2015, changing the classification of broadband Internet access from “information” services to “telecommunications” services — undoing years of light-touch federal regulation and the bipartisan consensus around broadband as an “information” service.
After several rounds of litigation, the U.S. Court of Appeals for the District of Columbia upheld this view, providing a solid foundation for the pro-net neutrality position. While the motivations and moving forces behind the shift under Obama have been the subject of great opprobrium among internet service providers, the Title II order is nevertheless the law of the land. Through it, the FCC adopted no-blocking, no-throttling, and no-paid prioritization rules and decided to “forbear” or refrain from enforcing many of the other rules. But that may not be the last word.
Congress has not stood silent on these issues. There is, in fact, a precedent for bipartisan agreement on Internet regulation. In 1998, Sens. Spencer Abraham (R-Mich.), John Ashcroft (R-Mo.), Wendell Ford (D-Ky.), John Kerry (D-Mass.), and Ron Wyden (D-Ore.) wrote to then-FCC Chairman William Kennard that “nothing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of [i]nternet and other information services or to expand traditional telephone regulation to new and advanced services.”
The senators admonished the FCC that if it subjected “some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.”
That advice was as sage then as it is now. But we operate in a climate where prudential policymaking may be a bygone notion. A robust regulatory proceeding is now underway. Five million comments have reportedly been filed in the FCC’s Restoring Internet Freedom docket. According to a recent data analysis by the free market research group Consumer Action for a Strong Economy, 65 percent, or 3.2 million, of the public comments on file support repeal of the FCC’s 2015 Title II Order. Recognizing the digital dimensions of public campaigns today, the study found that 75 percent of the comments came from 19 form letters on both sides of the issue.
As the notice and comment process unfolds at the FCC, there is a fundamental role for Congress. It should speed up its rewrite of the Communications Act and embed enduring laws to govern net neutrality. Both consumers and corporations have waited long enough for clarity on this important issue of our day, and the time for commonsense congressional action is now.
Adonis Hoffman is chairman of Business in the Public Interest and adjunct professor in the Communications, Culture & Technology Department at Georgetown University. He served as chief of staff and senior legal advisor to Democratic FCC Commissioner Mignon Clyburn from 2013 to 2015. He is the author of Doing Good: The New Rules of Corporate Responsibility, Conscience and Character.
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