2015 offers a net neutrality solution

The calendar ticks over a new year, and here we are, still arguing about net neutrality. 2014 was a wild ride for this perennial telecom issue, but there is good reason to believe 2015 can be different. With President Obama giving the debate a potent push leftward toward Title II regulation, a new Republican Congress looking to respond and the Federal Communications Commission (FCC) hoping to move on and get something out the door in February, the issue is quickly nearing a crescendo. Indeed, over the past year, net neutrality ballooned from a narrow, technical question into a political spectacle, and for better and worse, net neutrality is now a congressional issue.

{mosads}That last line is no typo: there is both good and bad to Congress getting in the game. First, the bad: rules around network management should be grounded in the realities of engineering, and network management practices quickly get quite complex. Because some techniques can be abused, even unwittingly, rules of the road and ongoing oversight is absolutely appropriate. At the same time, many network management techniques, including forms of traffic differentiation, are necessary, unobjectionable and unequivocally good for consumers. Once you get down to the details, policing network management is best done through general standards and ongoing oversight by technical experts at the FCC or independent organizations like the Broadband Internet Technical Advisory Group (BITAG), not black-and-white rules from Congress. These decisions should not stem from political ideology — from the right or left — but from technical expertise.

At the same time, some good could come of net neutrality as a legislative issue. With news that Republicans are working to craft an alternative to the Title II morass that President Obama would be willing to sign, supporters of even stringent Internet regulations should see a way out of this mess. Let’s pause and recognize this as the unique opportunity it is. We now see Republicans, historically skeptical of the need for net neutrality regulation, eager to find a bipartisan solution. Sen. John Thune (R-S.D.), who is at the forefront of this effort, released a statement outlining bipartisan principals as well as a discussion draft of new net neutrality legislation. You read that right — Republicans are actively looking for a compromise on net neutrality.

Taking a look at Thune’s principles, it is clear that this legislation will represent the high-water mark for net neutrality advocates. Indeed, the principles read like a Public Knowledge wish list, caving on a number of key issues to avoid the dead hand of Title II. For advocates of strong net neutrality legislation, it won’t get any better than this. The proposed legislation looks like it will apply equally to wireline and wireless and even include a blanket ban on paid prioritization. Let’s be clear: the legislation Thune is developing with Rep. Fred Upton (R-Mich.) is stronger than the 2010 FCC regulations struck down by the courts as common carriage, stronger than FCC Chairman Tom Wheeler’s initial proposal and certainly stronger than what is actually called for.

It’s perhaps unfortunate that it took something as drastic as the possibility of utility-style Title II regulation to force this kind of solution, but net neutrality supporters should realize that they now have the most leverage they’ve ever had and likely ever will for clear, permanent net neutrality rules. If the FCC does impose Title II, reclassification carries the very real risk of being struck down or made unworkable by the courts. Come 2017, there is roughly a 50-50 chance of a majority Republican FCC, which would quickly undo any remnants of reclassification the courts ignored. Furthermore, the very last thing an update to the Communications Act will do is start with the premise of Title II for broadband. The track the FCC is headed down is simply not a long-term or, frankly, even medium-term solution. An independent grant of authority from Congress would be a much more stable footing in the face of any legal challenge and would offer a strong baseline for a more comprehensive Communications Act update.

The reaction of the Internet populists over the next several weeks to these legislative proposals will once and for all answer the $64,000 question: Is their end-game really an open Internet? If so, they would fail Washington Politics 101 to not jump at this once-in-a-decade chance to lock in stringent rules that would survive a switch in FCC control. Or has net neutrality always been a populist stalking horse for complete reversal of policy — policy which, by the way, has seen the Internet flourish through the prior five FCC chairmen — opting instead for the imposition of a government-controlled Internet to liberate the “captive audience” of Internet users from the controlling hand of “big broadband.” My bet, alas, is on the latter and that they cast their lot with Title II. By all means, then, take that risky swing for the Title II fences. Then we can keep debating net neutrality for another five years.

Atkinson is president of the Information Technology and Innovation Foundation.