Back to the Digital Drawing Board

[Commentary] A circuit court’s ruling on network neutrality forces the Federal Communications Commission to go back to square one and reverse the industry-compromised decisions that set it on this path in the first place and that have long undermined its authority over broadband infrastructure. The court did, however, offer a way forward, if the FCC is willing to take it.

The agency must revisit and reverse former FCC Chairman Michael Powell’s 2002 decision, relabeling high-speed Internet access a common carriage service. That has always been the obvious solution. But for years the FCC has refused to do so, because its jury-rigged, contradictory stance worked well enough. Now it has no choice. Without the right administrative label applied to Internet services, every step the FCC takes to address these problems will be subject to a protracted battle over whether the FCC is impermissibly treating the network providers as “common carriers.” In the meantime, we will be no closer to having the reliable, ubiquitous, neutral, world-class communications infrastructure we need than we are today. High-speed Internet access isn’t a luxury; it is basic infrastructure, like electricity, clean water and a functioning street grid, that is essential for the free market to function. The FCC can show its strength by having the guts to change its mind.

[Crawford is a visiting professor at Harvard Law School]