FCC’s net neutrality decision corrects Telecom Act mistakes

[Commentary] The Federal Communication Commission’s recent network neutrality decision to reclassify broadband provision of Internet services as a telecommunications service subject to Title II of the Communications Act is an important step in correcting a series of mistaken decisions made in the 1980s and ‘90s and codified by Congress in the 1996 Telecommunications Act. Those decisions fundamentally misperceived the nature of the “gatekeeper” power held by the cable and telecommunications network operators. Compounding that mistake, the regulatory authorities permitted the vertical integration of the network “pipes” and the content carried within those pipes, giving the operators incentives to discriminate against content competitors. The regulators compounded those competitive harms by permitting a virtually unconstrained consolidation of the telephone and cable network operator industries.

The FCC’s embrace of Title II as the regulatory touchstone for oversight of Internet service providers is an important first step not merely to achieve net neutrality, but in rebalancing the allocation of power among consumers, network operators, and those dependent on access to those essential networks.

[Henry Goldberg has practiced telecommunications law in Washington (DC) since 1966 and has represented many companies involving the Internet. In the early 1970s, was general counsel in the White House Office of Telecommunications Policy.]