Bloomberg Law
Feb. 5, 2020, 9:01 AM

INSIGHT: Light at the End of the Net Neutrality Tunnel

Hon. Rick Boucher
Hon. Rick Boucher
Internet Innovation Alliance
Bruce Mehlman
Bruce Mehlman
Internet Innovation Alliance

New year, same net neutrality saga—but there may be light at the end of the tunnel.

The U.S. Court of Appeals for the D.C. Circuit’s decision in October 2019 upholding the Federal Communication Commission’s light-touch net neutrality rules validated the regulatory framework championed by FCC Chairman Ajit Pai, but it left some unfinished business that threatens to undermine the ruling. And it’s sure to be appealed by those who want to regulate the internet as if it were a rotary-dial telephone connected to a copper wire.

The opinion marks the third time the D.C. Circuit has ruled on some version of open internet rules the FCC has approved. Some of those rules were adopted under a Democratic FCC, and some were embraced under a commission with Republican leadership.

Either way, the rules always end up in court, as those disappointed in the policy arena litigate. Some decisions have been overturned in court, and others have been reversed by an FCC in different partisan hands following a presidential election. The cycle has become all too well known and all too wearisome.

And need we be reminded that 2020 is an election year? The constant back-and-forth, change-the-rules-every-time-a-new-regime-comes needs to end. And only Congress can end it.

Congress Must Act After D.C. Circuit Decision

That need for Congress to step in is even more urgent now, because the court’s ruling contains what could be a landmine for the seamless functioning of the internet on a national basis. While the ruling is good news for an internet ecosystem that depends on innovation, competition and investment, the court barred the FCC from categorically stopping the states from creating their own net neutrality rules (as long as they don’t conflict with the Commission’s Restoring Internet Freedom Order).

Under the court’s decision, it would be possible to see up to 50 different sets of rules. Good luck getting investors to build and operate a national 5G network under that tangled web of uncertainty.

Congress can solve this by codifying nationwide open internet rules that designate broadband as an information service and prevent paid prioritization, blocking, throttling, and unfair discrimination against lawful online content.

There is bipartisan support for these protections. In late December 2019, Sens. Roger Wicker (R-Miss.) and Kyrsten Sinema (D-Az.) created a working group to “encourage a fact-based, bipartisan dialogue and develop a compromise that will finally resolve this infinite loop on net neutrality.”

On the House side, a trio of Republicans also see the value in writing an open internet law. Legislation introduced by GOP Reps. Greg Walden (Ore.) HR 1101, Bob Latta (Ohio) HR 1006, and Cathy McMorris Rodgers (Wash.) HR 1096, accept the core provisions of net neutrality that Democratic Chairman Genachowski adopted in 2010. Latta even explicitly modeled his bill on one that House Democrats supported in 2010.

Each bill accepts the core provisions necessary for a free and open internet. Paid prioritization, blocking, throttling, and unfair discrimination against lawful online content would be prohibited by statutory law rather than by an FCC regulation that can be undone by another commission in different partisan hands.

Recognizing that Democratic Chairman Genachowski made a sound decision regarding Title I in 2010, these bills promote incentives for investment in broadband networks that are even more important now as the nation prepares to transition to much faster and more versatile 5G networks.

For decades, the rancor and tribal feuding present in so many policy arenas were largely absent from tech and telecom policy. Partisanship stopped at the network’s edge. Collaboration yielded supportive laws and light-touch regulations that enabled America to dominate the digital age. With global challenges to future American leadership in 5G and AI, we need to restore the cooperation and compromise that marked tech policy for decades.

The internet landscape has changed, and ultimately, we need a fair set of rules that applies to all internet companies to protect consumers—but, until then, open internet certainty that puts the endless net neutrality wars to bed would be a great place to start. The D.C. Circuit’s decision shouldn’t be viewed as a legal ruling, but instead as a plea for help.

Historical Context

The debate has gone on so long that it’s easy to get confused, so let’s review some history here.

In 2010, Democratic Chairman Julius Genachowski’s Open Internet Order contained a series of protections including prohibitions on paid prioritization and blocking, throttling or unreasonable discrimination based on content.

Genachowski made a critical decision at that time, as his FCC decided to maintain the view first adopted during the Clinton administration that the internet is an “information service” under Title I of the Telecommunications Act, rather than a “telecommunications service” under the more restrictive Title II. Title II had been the basis for telephone monopoly regulation from the 1930s, and most observers agreed these regulations should not apply to the internet. Genachowski’s rules were challenged in court and were overturned.

In 2015, new FCC Chairman Tom Wheeler decided to regulate the internet under Title II, imposing far-reaching regulatory burdens on internet service providers and creating a high level of regulatory uncertainty, which stymied internet investment. Wheeler’s rules passed by a party-line vote, but two years later were reversed by Chairman Pai’s FCC, under another party line vote that restored Title I treatment of the internet. Since Chairman Pai’s repeal of Title II rules, broadband provider investment increased by $1.5 billion in 2017 after a two-year decline. Last autumn, the D.C. Circuit upheld the FCC’s action.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Rick Boucher was a member of the House for 28 years and chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet. He is honorary chairman of the Internet Innovation Alliance (IIA) and an attorney in the Washington, D.C., office of the law firm Sidley Austin.

Bruce Mehlman served as Assistant Secretary of Commerce for Technology Policy and is a founding co-chairman of the Washington, D.C.-based Internet Innovation Alliance (IIA).