Ajit Pai could finally get net neutrality right

Maybe the fourth time will be the charm for net neutrality policy. That is certainly the hope of the country’s top telecommunications official, Federal Communications Commission Chairman Ajit Pai.

On Wednesday, Pai announced that he is opening a rulemaking process to undo key aspects of an audacious regulatory framework put in place by his predecessor, Democrat Tom Wheeler, who likewise reversed course from earlier attempts to enact a workable policy to enshrine the principle that there should be a fair and open playing field for websites and services riding over broadband Internet providers’ infrastructure. This is an issue that invariably provokes hyperbolic handwringing, but Pai is moving in the right direction.

{mosads}The specifics will take time for the FCC to iron out with input from industry stakeholders and the public, but the broad strokes that Pai has outlined provide a good starting point—getting rid of the ill-fitting legal mechanism that Wheeler employed while preserving some baseline rules and effective oversight from the FCC. Judging by Pai’s public comments, this scaling back, which has been long-anticipated by telecom policy watchers, appears aimed not at eliminating net neutrality protections but instead reducing the weighty regulatory baggage of the prior commission’s scheme.

At the end of the day, all can agree the Internet deserves a stable, flexible, truly bipartisan regulatory framework. But Wheeler’s heavy-handed approach, which classified broadband providers as “common carriers” under Title II of the Communications Act of 1934, sparked fireworks in all directions, highlighting the need for the FCC to find a better solution—or for Congress to step in and put this issue behind us once and for all by crafting a new, specially tailored law. 

First, let’s be clear: Pai’s move does not signal the end of the open Internet. The sky is not falling, contrary to what some activists would have you believe. The Internet was wonderful and open before Wheeler’s rules were put in place in 2015, and it will still be wonderful and open if Pai succeeds in making some much-needed changes.

Pai has repeatedly expressed his favor for a free and open Internet, and has said everybody at the FCC agrees. Meanwhile, Pai reportedly has been taking meetings with various stakeholders, sussing out where there is room for agreement among stakeholders to improve policy on this contentious issue. That should be achievable, because while there have been skirmishes among stakeholders on the question of what types of conduct should be legally proscribed for various Internet actors, the basic question of whether the Web would be an open, freewheeling system versus a closed, controlled one has long been settled in favor of the former: Everyone agrees on the value of an open Internet, and should be able to get behind innovation throughout the entire Internet ecosystem.

The question is how net neutrality rules work in practice, and the answer, as the Information Technology and Innovation Foundation has argued for over a decade, is to build on middle ground. Any regulatory regime should start with clear, understandable transparency requirements around network management practices, as well as baseline protections outlawing blocking of legal traffic or capricious degradation of websites or online service. This should be uncontroversial. But it is also important to recognize that differential treatment of some Internet traffic, including paid prioritization, can make certain applications function more effectively.

The fact is the technological underpinning of the Internet is not itself “neutral,” no matter what regulations you put on it. Without getting too technical, the way the Internet operates today is fundamentally biased against real-time applications, as we all too often experience when we try to do video chat with a friend on the other side of the nation. Data streams for things like shared virtual reality spaces, real-time feedback for augmented reality, precision control of remote devices, and even high-quality telepresence push the boundaries of what “neutral” networks are capable of delivering, and could well be improved by differential treatment. This is why we need flexible, but empowered oversight by the FCC.

It is unfortunate that this debate has not been able to progress from hypothetical concerns over cable companies trying to protect their video turf from online streaming options. Streaming video is now the norm—too popular to be messed with. Plus, bandwidth has grown to the point where the risk of mischief around streaming video is greatly reduced. (Consider that the CEO of Netflix isn’t concerned about a pull-back from the former rules.)

It is important that we avoid perverse incentives that would discourage investment in unmanaged broadband access, but a flat ban on specialized treatment over public Internet infrastructure all but ensures innovative new products will come slowly and be diminished in their reach, and it ultimately risks further fragmenting digital services away from the open Internet.

The long history of failed attempts to successfully introduce enhanced online services within broadband networks shows that if we are to make any progress toward the full promise of Internet access technology, we are going to need thoughtful, nuanced policymaking. Unfortunately, it appears we are in for a total circus, with full-time activists leveraging fearmongering, oversimplified half-truths, and outright demagoguery in attempts to preserve the one-sided “wins” they have achieved in recent years, cheered on by an echo-chamber of quasi-activist faux-reporters.

These agitators want to preserve common-carrier classification under Title II for one and only one reason: They want the Internet to be a highly regulated utility. They aren’t interested in a productive conversation about an innovation-oriented internet and communications system. Weeks before Pai’s proposal was to be released, some were already labeling it a “catastrophe.” But the reality is that Pai looks to be returning broadband to the legal regime that seemed to have worked pretty well from the dawn of the commercial Internet up until 2015.

In the coming storm, it will be important not to lose sight of what should be the ultimate policy goal: finding a workable, balanced solution that promotes flourishing innovation throughout the entire Internet, both on the edge and within the core of the network. Under Wheeler, the left-leaning activists got everything they asked for, to the determinant of innovation. Now, under Republican control, we can only hope the other side will resist the same temptation, lest the pendulum keep swinging forever.

The best solution to this issue should be balanced and stable—I say give Pai a shot at stopping the pendulum’s momentum at the bottom of its arc. But at the fourth attempt at net neutrality rules, this is starting to get ridiculous. Congress would do well to start seriously discussing the contours of a compromise so we can put this perennial problem to bed and move on to the real pressing Internet problems, such as closing the digital divide.

Doug Brake (@DBrakeITIF) is a senior telecommunications policy analyst at the Information Technology and Innovation Foundation, the top-ranked U.S. science- and tech-policy think tank.

The views expressed by contributors are their own and are not the views of The Hill.