Bloomberg Law
April 29, 2022, 8:00 AM

It’s Time for Congress to Set Internet Policy

Aaron Nielson
Aaron Nielson
Brigham Young University, J. Reuben Clark Law School

For two decades, the federal government has vacillated on so-called “open internet” or “net neutrality” rules—those rules that prevent broadband providers from blocking or slowing internet traffic to, among other things, favor their content.

When the Republicans are in power, the Federal Communications Commission pursues a light touch approach that attempts to foster both an open internet and greater investment in broadband infrastructure. When the Democrats are in power, the FCC instead imposes very different, heavier net neutrality rules.

This regulatory stop-and-go has left consumers and internet businesses in a sea of uncertainty. It’s time for that to stop.

The history is as neck-snapping as a tennis match. The FCC in 2004 adopted open internet principles that encouraged, but did not require, internet service providers to provide an open internet. In 2010, during President Obama’s administration, the FCC opted for more formal rules. Those rules were struck down in 2014 for exceeding the FCC’s authority.

In 2015, the FCC adopted even stronger rules classifying providers as “common carrier” utilities. But in 2017, after President Trump took office, the FCC rescinded those 2015 rules.

Now the FCC is preparing to adopt a perhaps even more stringent set of regulations than the 2015 rules, which the FCC will presumably rescind when a Republican returns to the White House.

Back-and-Forth Not Good for Anyone

This is madness. Whatever one’s view on net neutrality and how to strike the optimal balance between what is good for content creators and what is good for broadband providers, no one thinks that the FCC’s constant flip flops are good for the internet. Regulatory uncertainty is bad for innovation, bad for investment, and bad for consumers. It’s even bad for regulators, who must start every administration by undoing what the past administration just did.

And there is only one real way to stop it: bipartisan legislation.

The reason for the FCC’s dizzying pattern of zigs and zags is that Congress has not yet spoken clearly. Because Congress has not provided a legislative answer, the U.S. Court of Appeals for the District of Columbia generally defers to the FCC’s choices, which in effect has allowed the FCC to change policy from administration to administration.

‘Major Questions’ Doctrine

This lack of clear authorization from Congress may also ultimately doom any effort by today’s FCC to bring back strong net neutrality rules. Recently, the U.S. Supreme Court has focused on what is known as the “major questions” doctrine—the notion that only Congress can decide the nation’s most significant policy questions.

The Supreme Court has never decided whether net neutrality is a major question, but it has ruled against President Biden’s eviction moratorium and part of his vaccine mandate for lack of proper congressional authorization. It is also currently considering the extent of the Environmental Protection Agency’s authority against a major questions backdrop. And as a judge on the D.C. Circuit, Brett Kavanaugh relied heavily on the major questions doctrine to contend that Congress never authorized the FCC to impose net neutrality rules.

Especially given the Supreme Court’s recent focus on the major questions doctrine, both the FCC and Congress should recognize the shaky ground on which a purely regulatory approach to net neutrality stands. Indeed, during the Obama administration, the FCC chose to classify broadband providers as Title II common carriers like telephone monopolies and old-time railways to find a regulatory hook for net neutrality. Such aggressive use of regulatory authority may raise major concerns under the major questions doctrine.

Congress Must Act

If the Supreme Court agrees with now-Justice Kavanaugh that net neutrality is a major question that only Congress can address, the FCC will not be able to impose such rules. If the Supreme Court disagrees with Kavanaugh, there will be net neutrality regulations in the ballpark of what the FCC issued in 2015—but only when the Democrats are in power.

Either way, no one truly wins.

If the FCC can’t create net neutrality rules, Blue states will surely try to do so under state law, resulting in an untenable scheme in which, for example, California imposes net neutrality regulations on service providers, but Texas does not. And if the Supreme Court does not invalidate the rules, then the regulatory whiplash the nation has suffered through for nearly 20 years will continue into the future.

No one wants that.

The time therefore has come for Congress rather than the FCC to decide the proper framework for internet regulation. Everyone should come to the table and work together to reach a legislative compromise that ends this broken regulatory cycle. Legislation would be bullet-proof in the courts and provide the certainty and permanence that consumers and businesses want.

Only in Washington could it take decades to reach such an obvious and sensible answer.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Aaron Nielson is a professor of law at Brigham Young University Law School.

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