Network Neutrality

[Commentary] The first half of the Federal Communications Commission’s Restoring Internet Freedom notice of proposed rulemaking (NPRM) sets out the FCC majority’s proposal for reversing classification of broadband internet access services as “telecommunications services” governed by Title II of the Communications Act. Among other things, this section discusses the effect this reversal would have on the FCC’s ability to enforce its privacy laws and implement its Lifeline program, which provides a subsidy to low-income households for broadband. The second half purports to “re-evaluate” the existing net neutrality rules, the mechanisms that enforce them and any legal authority (other than Title II) that could be used to support them.

The FCC majority proposes to eliminate the “general conduct standard,” which prohibits ISP practices that “unreasonably interfere or unreasonably disadvantage” the ability of consumers to access the online content and services of their choosing, and the ability of online content and service providers to freely access customers. With regard to the remaining rules (no blocking, no throttling, no paid prioritization, transparency), the majority doesn’t make firm proposals on whether to retain or repeal them. Instead, it asks questions about whether the rules are even necessary.

The Federal Communications Commission’s Restoring Internet Freedom notice of proposed rulemaking states: “Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper’s website or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online… In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition — and accordingly appears to be an information service by the definition. We seek comment on analysis.”

Let’s just run down the obvious objections:

• First, most broadband providers simply don’t offer the services listed.
• Second, broadband providers often aren’t even aware what information they are transmitting, because it is encrypted.
• Third, most services that are in fact offered by the ISP, such as DNS lookup, error pages, caching and routing, all have to do with reasonable network management — the work of getting packets from one place to another properly.

Not all small broadband Internet access service providers are on board with the idea of repealing current net neutrality protections.

Dane Jasper, the CEO of Sonic, a large, independent ISP in California, said “incumbents will have a real advantage over new market entrants in the internet marketplace" if current rules are changed, which would create “a duopoly where consumers have only one or two choices when selecting an Internet provider as a result.” Jasper said the reclassification of ISPs as common carriers under Title II “has not impacted Sonic’s investment in infrastructure or our ability to serve customers.” “Only bigger carriers have enough subscribers to force content providers to pay additional fees,” Jasper said, “which is why these bigger carriers support the roll back of net neutrality regulations, while smaller ISPs support rules in favor of an open Internet.”

Service providers aren’t the only type of business to take into account when considering the effects of net neutrality. Edge providers — including websites, internet services, content providers — are all equally affected by how the internet is regulated. More than 1,000 such companies have signed on to an open letter to the FCC encouraging the commission to keep intact the Title II classification. The letter includes signatures from startups, investors and entrepreneurial support organizations in all 50 states.

[Commentary] What developers need is an internet where anyone that’s smart, hardworking, and a little lucky can win. Not a playing field that is rule-free, but one where the rules are known, and where rules are stable and consistent. The flaw in an Federal Communications Commission-driven internet is that the rules reflect the ideology of the sitting commissioners. When the referees change, the rules change too. That frustrates investors, stifles entrepreneurs and kills innovation. But the fix is simple: Congress must establish a permanent set of net neutrality rules and remove the FCC from the game. A set of rules, established by Congress, can easily put the issue of net neutrality to rest and support future investment and innovation in a strong, stable, and open internet. Any other course would be, well, Groundhog Day.

[Bruce Gustafson is a senior advisor for the Application Developers Alliance.]

[Commentary] President Barack Obama made it seem as if Title II is the only way to protect the free and open internet, and the result was 2015’s comprehensive regulatory order enshrining net neutrality. But some critics of the 2015 order insist that the Federal Communications Commission could have used more limited approaches that might have relied primarily on Title I or on Section 706 of the Telecommunications Act of 1996. They’ve argued that Title II classification is both bad policy and bad law, but so far, the 2015 order has survived its challenges in federal court. Now FCC Chairman Pai—who had served as a Republican commissioner for four years during Obama’s presidency—has proposed new rules that would roll back the 2015 order and reverse broadband classification under Title II. Of course, rolling back the 2015 framework also could mean that broadband providers feel more freedom under the FCC’s rules to block, throttle, or prioritize services—something that ISPs could certainly use unfairly. But revisiting the 2015 rules may also enable providers to do the kind of “reasonable network management” that President Obama mentioned, like allocating more bandwidth to video streaming services or lower latency for Voice over Internet Protocol services.

Some advocates see the reversal of the Title II classification as a threat to the very possibility of net neutrality. But the fact is that even when the Democrats held a majority of seats on the commission during Chairman Tom Wheeler’s chairmanship and before, there was some widespread belief at the commission that net neutrality might be achieved through non–Title II approaches—until President Obama urged the commission to use Title II instead. What’s more, Chairman Pai says he welcomes public input and wants to build a bipartisan consensus—like the one that has informed commission policy since at least the Clinton era—about how to deal with net neutrality issues. Pai also insists that he has been “pretty consistent about my view that I favor a free and open internet.” Some critics of the latest move may dismiss Pai’s statements as empty rhetoric, but dismissing the invitation to contribute to this new proceeding will only hurt the debate over the future of net neutrality.

[Mike Godwin is a senior fellow with the R Street Institute. Tom Struble is a technology policy manager with the R Street Institute.]