In April, the FCC issued its draft of proposed rule making on new Open Internet rules designed to replace those struck down by the DC Circuit court in January. Since then, a torrent of conversation and debate has taken place discussing those rules, the concept of net neutrality, broadband policy, and the role the FCC should play in the future of Internet regulation. To be clear, net neutrality is the principle that ISPs can’t block or throttle their customers’ web traffic and they can’t offer paid prioritization – also known as Internet ‘fast-lanes’ – that speed up one website’s traffic over another’s.
As we’ve said all along, the cable industry supports efforts to restore sensible net neutrality rules. Unfortunately, the Commission appears to have lost its way and is about to go way beyond open Internet rules toward a new regime that will put wireline, wireless and the Internet backbone under sweeping government controls. The impact will be more litigation, higher consumer prices, slower network innovation, and a compromised ability for America to insist on Internet freedoms around the world. We do not “solve” the net neutrality problem through Title II reclassification; we only spawn new problems that will divert policymakers’ attention for decades.
“We do not ‘solve’ the net neutrality problem through Title II reclassification; we only spawn new problems that will divert policymakers’ attention for decades.”
Title II is a significant regulatory overreach that goes far beyond enforceable rules which prevent practices that might threaten an open Internet. As a fact, it is a regime change – one that abandons the historic bipartisan approach to light-touch regulation in favor of a more muscular form of government control. Despite claims to the contrary the consequences of this decision are severe. Title II opens the door to new taxes and fees, rate regulation, class action lawsuits, and a host of other provisions that serve as a general disincentive to improving infrastructure and promoting competition. And while the FCC can forbear from certain parts of Title II, even the most vigorous spin from the Title II advocates can’t hide the fact that ISPs will be subject to a far more onerous regulatory regime than they have in the past.
While the FCC and its allies predictably are portraying this order as well within the agency’s authority, the reality is far different. In regulating retail ISP services and interconnection arrangements between ISPs and other networks, the FCC is moving into completely uncharted, and legally risky, territory. In other words, Title II means the debate and uncertainty will continue, possibly never delivering the clear, dependable net neutrality rules that everyone – ISPs, edge providers, and consumers – need in order to do business and succeed in the digital economy. We can expect legal challenges to play out over the coming years and a future FCC will again be stuck in this thorny situation.
Which brings us to where we stand on net neutrality. We believe the best way to get clear, enforceable, legal net neutrality rules is through bipartisan Congressional action. Congress can grant the Commission the legal authority needed to enforce net neutrality protections, without all of the baggage of Title II.
So while attention will be squarely focused on the FCC’s action this week, we believe the best outcome to finally solve this dilemma is for Congress to take up this mantle and deliver the permanent net neutrality that everyone says they want.