Network Neutrality’s Watershed Moment

After some ten years, gallons of ink and thousands of megabytes of bandwidth, the debate over network neutrality is reaching a climactic moment.

Bills are expected to be introduced in both the Senate and House this week that would allow the Federal Communications Commission to regulate paid prioritization, the stated goal of network neutrality advocates from the start. Led by Sen. John Thune (R-S.D.) and Rep. Fred Upton (R-Mich.), the legislation represents a major compromise on the part of congressional Republicans, who until now have held fast against any additional Internet regulation. Their willingness to soften on paid prioritization has gotten the attention of a number of leading Democrats, including Sens. Bill Nelson (D-Fla.) and Cory Booker (D-N.J.). The only question that remains is if FCC Chairman Thomas Wheeler and President Barack Obama are willing to buy into this emerging spirit of partisanship.

Obama wants a more radical course—outright reclassification of Internet services under Title II of the Communications Act, a policy Wheeler appears to have embraced in spite of reservations he expressed last year. Title II, however, would give the FCC the same type of sweeping regulatory authority over the Internet as it does monopoly phone service—a situation that stands to create a “Mother, may I” regime over what, to date, has been an wildly successful environment of permissionless innovation.

Important to remember is that Title II reclassification is a response to repeated court decisions preventing the FCC from enforcing certain provisions against paid prioritization. Current law, the courts affirmed, classifies the Internet as an information service, a definition that limits the FCC’s regulatory control over it. Using reclassification, the FCC hopes to give itself the necessary legal cover.

But the paid prioritization matter can addressed easily, elegantly and, most important, constitutionally, through Congress.

As a libertarian, I question the value of any regulation on the Internet on principle. And practically speaking, there’s been no egregious abuse of paid prioritization that justifies unilateral reclassification. It’s not in an ISPs interest to block any websites. And, contrary to being a consumer problem, allowing major content companies like Netflix to purchase network management services that improve the quality of video delivery while reducing network congestion for other applications might actually serve the market.

But if paid prioritization is the concern, then Thune-Upton addresses it. It would allow the FCC to investigate and impose penalties on ISPs that throttle traffic, or demand payment for quality delivery. On the other hand, Thune-Upton would also create carve outs for certain types of applications that require prioritization to work, like telemedicine and emergency services, and would allow for the reasonable network management that is necessary for optimum performance—answering criticisms that come not only from center-right policy analysts, but from network engineers.

Legislation also gives the FCC specific instructions, whereas Title II reclassification opens the door to large-scale, open-ended regulation. Here’s where I do indulge my libertarian leanings. Giving the government vague, unspecified powers asks for trouble. All we have to do is look at the National Security Agency’s widespread warrantless wiretapping and the Drug Enforcement Administration’s tracking of private vehicle movements around the country. Disturbing as they are to all citizens who value liberty and privacy, these practices are technically legal because there are no laws setting rules of due process with contemporary communications technology (a blog for another day). As much as the FCC promises to “forbear” more extensive Internet regulation, it’s better for all if specific limits are written in.

At the same time, the addition of regulatory powers invites corporate rent-seeking whereby companies turn to the government to protect them in the marketplace. Even as the FCC was drafting its Title II proposal, BlackBerry’s CEO, John Chen, were complaining that applications developers were only focusing on the iPhone and Android platforms. Chen seeks “app neutrality,” essentially a law to require any applications that work on iPhone and Android platforms to work on BlackBerry’s operating system, too, despite the low marker penetration of the devices.

Also, forcing the FCC to work inside narrow parameters means it can more readily ease up or even reverse itself in case a ban on paid prioritization leads to intended consequences, like a significant uptick in bandwidth congestion and measureable degradation in applications performance.

Finally, successful bi-partisan legislation can put net neutrality to bed. If the White House remains stubborn and instead pushes the FCC to reclassify, it almost assures a lengthy court case that not only would drag out the debate, but likely end with another decision against the FCC. But even if the court rulings go the FCC’s way, Title II is no guarantee against paid prioritization. Allowing Congress to give the FCC the necessary authority is constitutionally sound approach and has a better chance of meeting the desired objectives. Congress is offering a bipartisan solution that is reasonable and workable. The Obama administration has been banging the drum for network neutrality since Day 1. This is its moment to seize.

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