An Open Internet Détente: How and Why Bipartisan Legislation Should End the Net Neutrality Wars

The United States has grappled for more than a decade with how to regulate Internet access, and the issue has become increasingly partisan as it has moved from an academic discussion and technocratic debate into the hands of the Federal Communications Commission (FCC) under successive administrations. Republican FCC Chairman Ajit Pai recently rescinded not just the Obama administration’s common carriage rules grounded in the Title II framework, but the entirety of FCC authority over broadband. These extreme swings in jurisdiction are bound to continue, with courts giving the FCC wide deference to interpret the ambiguous Communications Act.

Senate Democrats are now attempting to roll back the latest FCC action through the Congressional Review Act (CRA). But experts agree the CRA is not likely to pass nor would it likely be signed by President Trump, who supported the FCC’s “Restoring Internet Freedom” order. Moreover, the CRA would establish the deeply flawed and dated Title II jurisdiction. Instead, it is past time to pursue real, bipartisan legislation.

On May 15, 2018, the Information Technology and Innovation Foundation (ITIF) hosted a discussion about the net neutrality debate, the recommendations in its latest report, and how and why Congress should give the FCC clear authority to enforce basic bright-line rules. ITIF Director of Broadband and Spectrum Policy Doug Brake moderated the conversation, with speakers representing diverse views and stakeholders.

To begin, Brake introduced the main points of the ITIF report and emphasized the need for Congress to pass bipartisan legislation that would end the net neutrality debate. A legislative package would also present the opportunity to address a far more important broadband policy issue: the digital divide. Unfortunately, far more ink has been spilled over largely theoretical concerns of blocking, throttling, and prioritization than the concrete challenge of getting all Americans online.

In particular, the report recommends a deal that “would end the back and forth on net neutrality inherent to changes in administration” and that both parties would support. Brake outlined the proposed tenets for such a deal. First, Congress should clarify that broadband Internet access service is not a “telecommunications” service under Title II of the Communications Act. Second, Congress should put widely agreed upon open Internet protections, including no blocking, no throttling, and transparency requirements, on firm legal ground. Third, it should allow pro-competitive traffic differentiation for applications that require it, while ensuring that abuses of prioritization are prohibited. Fourth, Congress should give the FCC reasonable, but bounded, jurisdiction to enforce open Internet rules. And lastly, legislation should expand the scope and funding of existing digital-literacy and broadband-adoption programs.

Following Brake, Christopher W. Savage, partner at Davis Wright Tremaine LLP, shared his thoughts on the report. In particular, he appreciated that the report recognizes the need for some form of expert agency oversight, noting that the suggestion may be more politically charged than originally thought. However, he expressed uncertainty over Congress spelling out the FCC’s broadband policies. Rather, he prefers when statutes are vague and the executive agencies can exercise more influence over their policies.

On the other hand, Kim Keenan, co-chairwoman at the Internet Innovation Alliance, believes that bright-line regulations would be a step in the right direction. She stated that the United States does not have a telecommunications act for the modern world, and as such, administrations play ping-pong with broadband regulation. She noted that a CRA is not the right method and that actual legislation will yield the best results.

Simon Rosenberg, president at NDN, spoke after Keenan. Having actively watched the Internet develop since its inception, he feels that it is at an unhealthy point in its lifespan. According to him, the Internet’s ills, such as fake news and foreign interference in elections, have deep-cutting social impacts. Because of this, he believes it’s important to figure out the “easier” issues first, in order to redirect the Internet’s direction so it can contribute to a healthy, productive society.

Christopher Wood, executive director and co-founder at the LGBT Technology Partnership & Institute, discussed the importance of closing the digital divide—particularly for those in rural and minority groups. He emphasized the role the Internet plays today in children’s school performance and that lack of access can be encumbering. He believes there is a need for bright-line standards that prevent blocking and throttling and encourage transparency.

Lastly, Kathleen Abernathy, special counsel at Wilkinson Barker Knauer and former FCC commissioner, shared her thoughts on the report. Like Wood, she emphasized the importance of closing the digital divide. In her opinion, it is key to get Internet infrastructure to rural areas and increase access in a fair and equal way. Abernathy also noted the importance of Congressional broadband legislation. She does not believe such policies should come from the FCC, since commissioners are not elected officials, and as such, cannot truly represent American citizens.

Overall, one particular point was made clear: A package that puts good policy and real spending behind digital literacy, broadband adoption, and rural infrastructure and also ends the national embarrassment that is the ping-pong of broadband regulation, should be something everyone can get behind.

Follow the conversation on Twitter using #ITIFnetneutrality.