What do Americans want Congress to do about net neutrality?

[Commentary] The Federal Communications Commission’s latest attempt at Open Internet rules may soon be struck down in the US Court of Appeals for the DC Circuit. Litigation may continue unless Congress intervenes. It is thus worthwhile to review the history of network neutrality in Congress over the past decade. Why did Congress’s many attempts at creating rules ultimately fail? Why have advocates focused on regulatory rulemaking rather than legislation? Moreover, are so-called “bright-line” approaches even necessary and proven to ensure an Open Internet? And if the FCC’s rules succeed in court, does the will of the people truly align with the agency’s plans to regulate the Internet?

There is considerable evidence that a multistakeholder approach can effectively ensure Internet openness, foster transparency, and deter blocking and throttling. The multistakeholder model is particularly helpful in creating a “middle ground,” where concerns about net neutrality can be addressed and resolved without hard rules that lead to litigation. In fact, hard, “bright-line” rules can actually increase litigation, as evinced by the ongoing lawsuits in the Netherlands, Canada, Slovenia, and the US. Many aspects of Internet policy are already governed through a multistakeholder model, in which shared principles, norms, and decision-making processes are developed. It incorporates a multitude of actors including nation-states, companies, standards organizations, academics, and members of civil society. That the Internet can be managed using this process suggests that the issue of Open Internet may well benefit from this approach in the US. Indeed, such models have been successfully used to promote an open Internet in Sweden since 2009 and in Denmark since 2011 — two countries praised by Title II advocates.

[Roslyn Layton studies Internet economics at the Center for Communication, Media, and Information Technologies (CMI) at Aalborg University in Copenhagen, Denmark.]