It’s time for Congress to end the net neutrality wars

At the Consumer Electronic Show in Las Vegas last week, Federal Communications Commission (FCC) Chairman Tom Wheeler announced his intention to reclassify Internet service as a public utility in order to achieve President Obama’s laudable goal of a free and open Internet. Because this outdated “solution” has tied the FCC in knots for years, and is fraught with legal risk, it’s time for Congress to step in and lift net neutrality out of the regulatory morass.

By making equal access to the Internet the law of the land, Congress could settle this contentious issue once and for all. It should create a new source of authority to regulate the dealings between Internet service providers (ISPs) and content providers — outside the creaky confines of Title II of the 1934 Communications Act. In this way, Congress can more effectively meet the president’s net neutrality goals without recourse to outdated telecom regulations that could raise broadband prices, impede investment in the core of the network, and pull content providers and the services they offer within the ambit of archaic telephone regulations.

{mosads}A bipartisan consensus is forming around the need for a legislative solution to the net neutrality problem, which has lingered for nearly a decade without resolution by the FCC. Just this week, Senate Commerce Committee ranking member Bill Nelson (D-Fla.) announced that he’s in discussions with the panel’s chairman, John Thune (R-S.D.) on a targeted, bipartisan solution. The Senate is now in a race against Wheeler to find a solution.

How did it come to this? In January 2014, the D.C. Circuit vacated the FCC’s second attempt to regulate so-called pay-for-priority arrangements and impose rules against blocking content. The court ruled that the FCC’s heavy-handed approach was tantamount to common carriage, and because ISPs were not classified as common carriers, the rules were illegal. Importantly, the court provided the FCC an alternative to regulating such dealings that was short of common carriage, but unfortunately the chairman and the president have chosen not to embrace this less-interventionist path.

Analysts of all political stripes recognize that the FCC is in over its head. Rather than judge the issue on the merits, the FCC’s technology czar is busy recounting the millions of comments that have flooded the agency. But regulators aren’t elected representatives and it’s not their job to set policy. Writing in left-leaning Vox, Tim Lee summarized the problem nicely:

More ordinary people have an opinion on it than they do about almost any other issue on the FCC’s docket, which is why the issue has generated millions of submissions. But that’s precisely why this decision shouldn’t be left to the FCC. Congress set up regulatory agencies like the FCC to work out the details of regulatory decisions. But big-picture policy decisions — especially those that are hotly contested by voters — should be made by Congress itself. Congress is specifically organized to resolve political issues like this. It has hundreds of elected officials whose job is to represent the interests of their constituents. Congress, not the FCC, should be deciding what network neutrality rules, if any, should govern the [I]nternet.

A legislative solution that created a new grant of authority — what some have called “Title X” — should appeal to both parties. Beginning with Democrats, the president will be assured that his net neutrality goals of transparency, no blocking and no preferred access to the Internet are met. In particular, his (controversial) vision of a blanket prohibition on pay-for-priority arrangements could be achieved with certainty. Not so with Title II, which merely requires that the terms for a new service such as paid priority be extended to all similarly situated comers.

A legislative solution also averts the unending litigation that will surely follow an FCC decision invoking Title II as the way to ban such “paid prioritization” on the Internet. Wheeler himself has publicly acknowledged this inevitability, even as Title II’s legal frailties become ever more clear. For example, overlooked in the debate until recently is the fact that the FCC is barred from subjecting mobile broadband to common carrier regulation by section 332(c) of the Communications Act.

Narrowly crafted legislation such as a “Title X” should also appeal to Republicans. It avoids the highly intrusive Title II solution, which also spares consumers from having additional telecom-related fees show up on their monthly bills. That’s because treating Internet service as a telecom service would subject it to state and local telecom taxes and fees. A targeted legislative solution merely gives the FCC the authority to regulate paid priority, up to and including a ban. A future chairman might decide to regulate these dealings in a different way — for example, along the less-interventionist lines outlined by the D.C. Circuit in the Verizon decision.

The net neutrality controversy — suffused by groundless alarmism, bad faith and technical ignorance — has dragged on long enough. It’s time for Congress to put the FCC out of its misery and make the right policy call for America.

Marshall is the president of the Progressive Policy Institute. Singer is a senior fellow at the Progressive Policy Institute.