Congress Needs to Stop the Net Neutrality Definitional Merry-Go-Round

[Commentary] In a few weeks, it is widely expected that the Federal Communications Commission will release a draft order reversing the Obama Administration’s controversial 2015 decision to reclassify broadband internet access from a lightly-regulated “information” service under Title I of the Communications Act to a heavily-regulated common carrier “telecommunications” service under Title II of that same Act. As with the original 2015 decision, a court appeal of this policy change is a virtual certainty. Yet, even though the DC Circuit in USTelecom v. FCC upheld the FCC’s 2015 open internet rules just over a year ago, this very same case provides the current FCC with ample authority to return to the pre-2015 status quo. As such, assuming current FCC Chairman Ajit Pai can construct a good analytical story, the Trump Administration’s reversal of the Obama Administration’s power grab nonetheless has a good chance of success on appeal.

If we want this legal merry-go-round to stop, then there is only one solution: Congress needs to pass legislation. Unfortunately, given the tenor of the current broadband policy debate, I am not particularly optimistic. But given the state of the law, if Congress fails to act, then it will just be deja vu all over again.

[Lawrence J. Spiwak is President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]