Past Policies and State Patchworks Won’t Provide Long-Term Net Neutrality

Jordan Crenshaw
Senior Vice President, C_TEC, U.S. Chamber of Commerce

Published

February 01, 2018

The debate over net neutrality has taken another turn over the last few weeks in the wake of the Federal Communications Commission’s (FCC) decision to roll back the Title II designation of broadband service and bright-line net neutrality rules. Since then, Senate Democrats have pushed for use of the Congressional Review Act (CRA) to overrule the FCC’s decision, and many states are taking it upon themselves to enact their own versions of net neutrality. As the U.S. Chamber has pointed out numerous times, net neutrality legislation is necessary to provide long-term regulatory certainty to the internet ecosystem, but use of the CRA and state laws take us further away from that possibility.

The Congressional Review Act is the wrong way to enact net neutrality protections

The Chamber firmly believes in net neutrality principles and that Congress should enact legislation to permanently give consumers guarantees that they will be able to access the lawful content online they want. On the other hand, the Chamber agrees with FCC Commissioner Brendan Carr who pointed out at the Chamber last week the pitfalls with “heavy-handed, utility-style regulation of the Internet” which came with the previous administration’s designation of broadband as a Title II “common carrier” under the rotary-phone era 1934 Communications Act.

At this time Senate Democrats have managed to meet a procedural hurdle under the Congressional Review Act requiring at least 30 signatures on a petition to force a vote to disapprove and eliminate the FCC’s Restoring Internet Freedom Order. This is the order that eliminated the 2015 Open Internet Order’s net neutrality rules and returned broadband from being treated like a public utility overseen by the FCC to the innovation-friendly regulatory framework of the Federal Trade Commission.

The Chamber believes this is the wrong approach as outlined in its letter to Senate members this week. Use of the CRA to reverse the Restoring Internet Freedom Order would take us back to the past policy of treating the internet like a public utility in which many studies have shown investment declined for the first time outside the context of a recession. It wouldn’t provide regulatory certainty because Title II created vague and broad authorities to regulate ISPs beyond net neutrality issues on things like privacy, rates, and free data for consumers.

Congress should follow regular order, hold hearings, and work to gather consensus on a clean net neutrality bill that doesn’t treat the internet like a utility. Currently, various plans have been proposed such as Rep. Marsha Blackburn’s (R-TN) which would ban blocking and degrading of content while AT&T has proposed a an Internet Bill of Rights.

Much debate also exists over whether ISPs should be banned from engaging in paid prioritization, which is the practice of creating internet fast lanes based on contractual arrangements. Given all of the diverse opinions in the public square on this topic, it is critical for Congress to take a fresh look at net neutrality and issues such as paid prioritization, which is what Chairman Greg Walden (R-OR) is calling for through hearings.

If Congress doesn’t step in with a net neutrality package that consumers, internet companies, and tech firms can live with, we will only continue to see regulatory uncertainty plague the internet ecosystem and hamper investment. An up-or-down CRA vote can’t bring about the consensus needed to move the net neutrality debate in a direction that provides long-term stability and growth.

A state patchwork of net neutrality rules just makes things worse

In response to the FCC’s Restoring Internet Freedom Order, at least 22 states have introduced some kind of legislation to impose net neutrality rules on ISPs. Several governors in states like Montana and New York have issued executive orders preventing their governments from doing businesses with ISPs that are alleged to violate net neutrality principles. This too is the wrong approach if the goal is to create a lasting and successful regulatory framework because it creates a patchwork of laws for arguably one of the most interstate industries in America.

A federal broadband policy is the only one that can successfully promote innovation in investment because it does away with the burden of an ISP having to comply with fifty different state net neutrality rules. Additionally, small internet service provider will face a disparate burden of complying with competing regulatory frameworks. Complicating things is whether the provision in the Restoring Internet Freedom Order preempting localities from imposing net neutrality laws will survive court scrutiny. This uncertain patchwork creates an untenable regulatory landscape for the internet.

Local and state leaders should focus their attention not on legislating new state and local net neutrality rules but encouraging their federal representatives to pass long-term, consensus driven internet protections that also promote innovation and growth.