What’s Next for Net Neutrality?

Since the FCC’s Restoring Internet Freedom Order was passed in December to reverse the previous reclassification of broadband Internet providers as common carriers, there has been a renewed flurry of activity around net neutrality, including an effort by Senate Democrats to use the Congressional Review Act (CRA) to reverse the decision, talk of legislation from both sides, and a surge of actions by state governments to create their own net neutrality rules. To examine the potential outcomes of all these efforts, the Congressional Internet Caucus hosted a panel discussion spanning the political spectrum, including TechFreedom President Berin Szóka, alongside Matthew Brill, partner at Latham and Watkins; Angie Kronenberg, chief advocate and general counsel at INCOMPAS; and Chris Lewis, vice president of Public Knowledge.

While the panelists found common ground on the fundamental tenets of net neutrality, they disagreed over how it should be implemented, and the details of what exactly enforcement should look like. Kronenberg and Lewis both affirmed support for a CRA disapproval resolution, which would permanently reclassify ISPs as common carriers (public utilities, essentially) subject to Title II of the 1934 Communications Act. However, Szóka noted that the powers granted to the FCC went far beyond the scope of net neutrality, including things like rate regulation that could ultimately be harmful to broadband deployment and innovation.

“We need core, limited, defined powers to enforce core rules and police anti-competitive behavior,” Szóka said. “I think the federal trade commission is actually in a very good position to do that, but I’m happy to talk about what legislation should look like, and we don’t need Title II to do that.”

Brill expanded this point, noting that the inclusion of rate regulation in the net neutrality debate is ultimately counterproductive in building a consensus.

“It’s really Economics 101 that if we want the private sector to continually invest billions and billions of dollars, we cannot impose a public utility model of regulation that is going to inhibit that kind of investment,” Brill said. “The threat of government saying ‘I will tell you later if I think your prices are reasonable,’ is not a recipe for investment, and I think there is pretty broad consensus on that principle. Most of the people on both sides of the aisle that feel passionately about net neutrality protection aren’t arguing about rate regulation. We’re talking about blocking and throttling and prioritization issues that are more consensus-driven. I think the debate here is going to be a lot more positive if we focus on those net neutrality issues.”

The panel also tackled the question of recent actions from both governors and state legislators to create net neutrality rules at the state level.

“This is a distraction, not only from legislation at the federal level, it’s a distraction at the state level, because right now, the Restoring Internet Freedom Order turned authority over broadband back to the Federal Trade Commission and the Department of Justice at the federal level, but also to the states enforcing their generally applicable consumer protection and competition laws, and that’s as it should be,” Szóka said. “If there are real problems with competition and consumer protection in the market, the states have the ability to bring lawsuits. Every single one of these state governors and state legislators, instead of putting forward executive orders and legislation that are going to be struck down, could be holding hearings, drafting legislation, and asking what resources their state AG’s office has to deal with broadband concerns. Those are things the states can do within their legitimate police powers that do not constitute attempting to replicate federal telecommunications regulation. And no one’s doing that, because this is all about symbolism.”

While all sides expressed at least a willingness to consider legislation defining new authority to enforce net neutrality, thus far, only Congressional Republicans have actually offered legislation to do so. Democrats have not offered net neutrality legislation since 2011; instead, they’ve focused on reversing the most recent FCC decision and reverting to the 2015 Open Internet Order’s rules, which would lock in Title II common carriage regulation forever.

Read Szóka’s WIRED op-ed from last year about why only Congress can resolve this issue — by passing substantive net neutrality legislation.