Why net neutrality needs a congressional solution

[Commentary] Net neutrality advocates and opponents alike have demonstrated their steady investment in a specific outcome that juxtaposes regulation over no regulation. These deep seated divisions are played out among members of Congress, industry leaders, activists, and even academics. Given the tumultuous history of net neutrality at the Federal Communications Commission, the future of internet regulations will remain uncertain in the US. Today’s decisions will be vulnerable to challenges from a possible Democratic administration and potentially overturned if argued before the Supreme Court. Congress may be the only entity that can offer a more permanent solution to what is driving the debate – adherence to the principles of an open internet and the application of the appropriate legal authority. As the FCC works on its repeal, Congress should exercise leadership to identify a legislative solution that marries – rather than polarizes – these two perspectives to reach bipartisan agreement. Clearly, a congressional solution cloaked in partisanship will not be the starting place for such negotiations. Congress cannot remain gridlocked on this issue given their constituents’ reliance on the digital economy. Citizens are increasingly leveraging the internet and other new technologies for employment, entrepreneurship, health care, education, civic engagement, and other critical functions. Elected officials must start the negotiations in radical agreement on internet openness, given that the digital economy will continue to face broadband capacity challenges (i.e., spectrum and infrastructure concerns) as demand for services rises.

As such, Congress should delve into the question of legal authority conditioned not on emotion or political party, but on the most appropriate and sustainable framework for its application. Under this scenario, a bipartisan agreement could abandon Title II based on its outdated and perfunctory application to the online economy and focus on codifying the bright line rules through statute. A compromise might also include an additional bright line rule that offers consumers a formal means for complaint and adjudication at the Commission. Or FCC authority can perhaps be shared with the FTC: making one agency the cop on the beat over behavioral and commercial practices (FTC) and the other over technical misgivings and other consumer concerns (FCC).