The revival of net neutrality relitigates a ‘solution’ in search of a problem

Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel recently unveiled her plan to repeat the mistake of her predecessor, Obama-era FCC Chairman Tom Wheeler, by reviving his ill-fated Open Internet Order (OIO). Despite its name, the OIO created an onerous, utility-style regulatory framework that gave the FCC sweeping powers beyond the scope of its purported goal of net neutrality. Instead, it imposed heavy-handed controls over broadband companies that as former Obama-era solicitors general argued “would vastly expand the Commission’s authority and would transform the way a federal agency regulates a vitally important element of our economy and the personal and social lives of hundreds of millions of Americans.”

Much has changed since the implementation of the OIO in 2015. Notably, Congress recently invested $42.5 billion into broadband deployment—the largest appropriation of its kind to date. Concurrently, Congress is examining the Affordable Connectivity Program and Universal Service to ensure all Americans can afford broadband. But instead of focusing on positive ways to help everyday Americans, the FCC is relitigating a solution in search of a problem for the fourth time. 

At its core, the current debate over net neutrality is a question of whether or not broadband service should be classified in Title I or Title II of the Telecommunications Act. Proponents of Title II regulation, however, have turned it into a rallying cry to, in their view, save the internet. It became a common talking point, thanks largely to John Oliver’s inaccurate portrayal on “Last Week Tonight.” It became a crusade based on one of the most hysterical fear campaigns Washington has ever seen. It also led to death threats against FCC officials, staff and their families—including a bomb scare that evacuated the FCC headquarters. Nevertheless, in 2017, Chairman Ajit Pai issued the Restoring Internet Freedom Order, returning to the light-touch regulatory approach that has allowed the internet to flourish.

In the six years since, the internet did not start loading one word at a time and ISPs neither blocked nor throttled any legal content. Instead, spurred by advances in technology, the internet has become more competitive than ever before. Mobile speeds are now competitive with at-home networks, and new technologies like fixed wireless and satellite are changing the paradigm of what it means to be connected. 

The FCC is also taking proactive action to make choosing internet plans easier for consumers. Recently adopted broadband consumer labels allow “comparison-shopping” for broadband services. Broadband providers are required to display these labels—which show price, speed, data allowance and more—at the point of sale. This provides significant transparency and helps consumers make informed decisions. 

It is worth noting that, despite erroneous anecdotes about California firefighters being throttled, there have not been any true examples of alleged consumer harm. Had there been, examples would have been all over the news. Headline after headline warned of the havoc that repealing the OIO would wreak on the economy, the internet and competition. But the hyperbole was unfounded. 

Additionally, the Federal Trade Commission (FTC) is responsible for identifying consumer harms and any unfair or deceptive practices that providers allegedly engage in. The current FTC is not shy about addressing such harms. It is difficult to imagine that such violations exist and are not being litigated. If providers were engaging in blocking or throttling, it is likely the FTC would throw the book at them. Yet there have been no such investigations, fines or cases.

Despite this, Chairwoman Rosenworcel announced that she “seeks to largely return to the successful rules the Commission adopted in 2015.” By the time this rule is published in the Federal Register, it will have been almost a decade since the last misguided attempt to reclassify broadband as a Title II service. In that time, we’ve seen innovations in fixed and mobile broadband delivering faster speeds, growing competition as new providers emerge, and new technologies helping connect communities that have remained on the other side of the digital divide for far too long. But the FCC still seeks to use an antiquated framework to regulate an ever-evolving and rapidly growing sector of the economy. 

Returning to a Title II framework would have negative downstream impacts on the internet marketplace. The 2015 OIO had a chilling effect on broadband investment. The United States is on the precipice of one of the largest investments in broadband buildout of all time, and we have already raised concerns about wasting that money through unnecessary and overly burdensome regulations. 

The chairwoman is looking to end the digital divide while pursuing policies that directly impede that effort. Almost a decade later, the FCC is reopening Pandora’s box — a rulemaking that will have enormous costs with no return. The hours and taxpayer dollars spent to issue these rules will be significant, and money otherwise spent on broadband deployment may be diverted to compliance and fighting against this pointless crusade.

There has never been less of a need for Title II broadband regulation. Except for the brief period between 2015-2017, The FCC has relied for decades on a light-touch regulatory framework that facilitated the dot-com boom and gave us the internet we know and love. The FCC should move on and leave Title II and net neutrality as a thing of the past.

Jonathan Cannon is policy counsel for the R Street Institute’s technology and innovation team. Canyon Brimhall is the senior manager of federal government affairs at the R Street Institute