It’s not surprising that a few sparks flew, and more threatened, in the recent congressional hearing on net neutrality, specifically on the proposed “Save the Internet Act,” H.R 1644. Net neutrality has been — in my view, needlessly — among the most contentious policy issues in telecommunications or almost any other area over the past decade. But there is a real way forward to solve this issue instead of continuing to debate it at a time when the country should be focusing on advancing 5G technology.
Briefly, H.R. 1644 codifies the provisions of the FCC’s 2015 Order imposing Title II regulation on the internet. Instead of treating the broadband internet as an information service, as every other commission had done for almost 20 years (including under President Obama’s original FCC chairman), the FCC took the drastic and unwarranted step of imposing monopoly-era regulations. Those regulations were created and intended for the voice telephony monopoly nearly 80 years earlier.
Even though the FCC promised to forbear from enforcing some of them, the message was clear: internet access would no longer be lightly regulated, and some parties, especially internet service providers (ISPs), would face different rules than others (such as edge providers).
Yet even in 2015, the power of edge providers such as Facebook and Google was evident. To the degree that consumers had concerns about data privacy or market dominance, it was clear that these edge providers had far greater visibility into users’ online behavior and far greater ability to target advertising than ISPs or anyone else. Nevertheless, the FCC’s 2015 Order targeted ISPs alone for more intrusive regulation.
Predictably, investment in broadband appears to have fallen during the period when the FCC’s 2015 rules were in effect. Declining investment helps no one. Yet that’s the likely outcome again if H.R. 1644 becomes law, even as the United States races China to master and deploy robust 5G networks.
In contrast, back in 2010 both FCC Chairman Julius Genachowski and Democrats in Congress advanced net neutrality principles while maintaining the long-proven Title I regulatory framework. This approach combined core net neutrality protections for consumers with a desire to avoid harming incentives for investment in broadband. At the time, most Republicans opposed the approach, preferring fewer regulations given the lack of demonstrated market failures. Yet based upon the positive 2010-2015 experience and the time and resources wasted on ongoing regulatory warfare, many Republicans have come around.
Three different Republican bills have been introduced in Congress this year to enshrine core net neutrality provisions, such as no blocking or throttling of legitimate online content and no unfair discrimination based on content, into law. The bills differ in some of their provisions, but all are committed to basic net neutrality principles, consistent with those advanced by Democrats in 2010.
Former Republican FCC Commissioner Robert McDowell expressed the additional reason Republicans are ready to legislate at a recent House hearing. McDowell stated that, while he did not believe additional legislation was necessary to protect consumers or investment, the time had come to end the regulatory uncertainty surrounding the issue.
Congress “has the power to forge a reasonable majority to craft new bipartisan legislation that could last for decades and serve as a beacon for an open and freedom-enhancing internet across the globe,” McDowell said. Legislation can only be accomplished by “that reasonable majority that offers a win-win-win scenario for all who build and are affected by the internet. Without a large bipartisan majority, any legislative effort is largely symbolic.”
McDowell noted that more than $1.6 trillion “in private risk capital [has flowed into] broadband infrastructure since the mid-1990s” thanks to the Title I framework. The shift to 5G will demand even more investment in the decade ahead. Historically, U.S. telecom policy avoided the bitter partisan animus that undermines progress in so many other areas. Partisanship stopped at the network’s edge. This can be the case again. Lawmakers have another opportunity to work together on bipartisan measures that advance net neutrality without diminishing investment, and they should seize it.
Bruce Mehlman (@BpMehlman) is founding co-chairman of the Internet Innovation Alliance (IIA), a coalition of business and non-profit groups seeking to expand broadband access. Mehlman previously served as assistant secretary of Commerce for technology policy under President George W. Bush.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.