Feature:Opinion

Net Neutrality Bait And Switch To Title II

Net neutrality and Title II FCC Internet regulation are not the same.

Net neutrality is forward-looking, 21st century Internet freedom. Title II is backward-looking, 1934 government restrictions of a bygone telephone monopoly.

Net neutrality is all about protecting consumers’ Internet freedoms. Title II is all about politics, power and control.

Net neutrality freedoms ensure a decentralized consumer-driven Internet. Title II threatens a more centralized, politicized and government-controlled Internet.

Net neutrality is about keeping the Internet free speech we have long enjoyed. Title II is about enthroning the FCC to decide what “fair” speech is on the Internet.

Net neutrality is a universal principle. Title II is power exclusive to the FCC.

Net neutrality unites, FCC Title II divides.

They are not equivalent or interchangeable.

So what is really going on? Politics.

How do we know? We’re witnessing a classic bait and switch play out in public that anyone paying attention can see.

House Energy and Commerce Committee Chairman Fred Upton and Senate Commerce Committee Chairman John Thune have offered the FCC and congressional Democrats a draft legislative proposal that gives the FCC all the consumer protection authority it has publicly said it needs to enforce wired and wireless net neutrality, i.e., no blocking, no throttling, no paid prioritization and required transparency.

To prevent the kind of overreach that has led courts to overturn the FCC twice already, the Republican chairmen’s discussion draft would prohibit the FCC from reclassifying the Internet as a telephone regulated utility and limit the it’s Internet authority only to addressing the general problems that the agency has publicly identified over the last twenty years.

Unfortunately, to date, the FCC and the administration have rejected any congressional negotiations or compromise involving Title II, and lobbied furiously behind the scenes to ensure that no congressional Democrats would negotiate over Title II.

If this was truly about net neutrality and protecting consumers, the FCC and the administration would be negotiating earnestly to achieve a lasting legislative compromise solution, not playing politics.

Apparently, this is now about deceptively using the “bait” of net neutrality consensus to disguise the FCC’s “switch” to unilaterally asserting sweeping regulatory authority over the Internet, with no transparency about how the FCC plans to use this new sweeping power for regulatory purposes beyond net neutrality.

We will soon learn what other political plans the FCC has for its asserted Title II authority beyond net neutrality, when we learn which Title II regulations the FCC intends to keep and use.

To the extent that Title II is about politics, and also about ensuring all Internet traffic is treated equally, Title II regulation of Internet communications could devolve politically into a de facto FCC “Internet Fairness Doctrine,” where like the FCC’s 1949-1987 “Fairness Doctrine” for broadcasters, the FCC could regulate Internet political content under Title II to ensure all Internet speakers were treated equally.

If we are supposed to believe the FCC that broadband competitors have “gatekeeper” power to discriminate commercially, why wouldn’t the FCC have national regulatory “gatekeeper” power to discriminate politically in favor of providers, content and candidates who support expansive FCC power and control over the networks and content that comprise the Internet?

If this FCC’s expected assertion of Title II authority is driven by politics, why is it hard to imagine that an FCC majority would exercise its new power in accordance to politics and not the law?

Political regulatory power grabs could easily beget political regulation of political speech.

Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.