Why We Need Net Neutrality Legislation, and What It Should Look Like

A key reason for the contentious fight over net neutrality regulation, and the source of its partisan strife, is that the way we classify broadband Internet access for legal purposes could have weighty long-term implications: Do we want a broadband system more like a public utility under Title II of the Communications Act, or do we want to rely on private companies to drive the evolution of broadband, with relatively light oversight from the Federal Trade Commission (FTC)? But this is a false dilemma predicated on outdated law, and it has resulted in a ping-ponging of broadband regulations. Congress can and should act to end this “long national nightmare” that is the net neutrality war. There is ample room for a bipartisan compromise on net neutrality that would not only lock in noncontroversial ex ante protections and finally end the absurd back-and-forth on Federal Communications Commission (FCC) jurisdiction, but also secure funding to help close the digital divide with programs that promote digital literacy and broadband adoption—while also accelerating deployment in rural areas. With the Restoring Internet Freedom Order having hit the Federal Register, broadband Internet access will once again be considered an “information service” under the law—just as it was from 1998 to 2016.  With it comes a host of implications, the most important of which is the FCC in effect deciding Congress has not given it the authority to act as the primary regulator of broadband—while in the same process repealing the 2016 net neutrality rules grounded in common carriage.

Net neutrality legislation should:

• Clarify that broadband Internet access service is not a “telecommunications service” under Title II of the Communications Act.
• Put widely agreed upon open Internet protections, including no-blocking, no throttling, and transparency requirements, on firm legal ground. 
• Allow pro-competitive traffic differentiation for applications that require it, while preventing anticompetitive abuses of prioritization.
• Give the FCC reasonable, but bounded, jurisdiction to enforce open Internet rules. 
• Expand the scope and funding of existing digital-literacy and broadband-adoption programs.