Congress Should Decide Net Neutrality. Too Bad It Doesn’t Have The Bandwidth

As Federal Communications Commission (FCC) chairman Ajit Pai moves his agency toward rolling back Obama-era network neutrality rules, more voices are calling for a lasting solution to the debate: a new law. FCC rulings are subject to court challenges and changing political regimes, after all.

But Congress is so mired in the Trump agenda, and so distracted by the administration’s daily melodrama, that passing new telecom law any time soon seems practically impossible.

The 2015 Open Internet Order says large internet service providers (ISPs) like AT&T and Comcast can’t block or discriminate against lawful web content, under the FCC’s 1934 Title II regulations. Nor can they set up internet toll booths to sell the fastest service to the large internet companies that can afford to pay the most.

Lots of dollars are riding on whether the internet is regulated as a public utility or as a private, for-profit internet service. In the first scenario, the big ISPs say they’ll stop investing to improve their networks. In the second, big internet companies say the high rates they’ll be forced to pay for internet carriage will stop them from growing and creating jobs, and stifle venture capital investment in new tech companies.

Congress, however, doesn’t appear to be close to acting, for a number of reasons. The Trump agenda has moved through Congress far slower than most Republicans anticipated. Many thought repealing and replacing the Affordable Care Act–the GOP’s first order of business–would be done by the end of February. Instead, it’s mid-summer, the Senate GOP health bill has collapsed, and because the Trump administration’s centerpiece legislation–its tax reform plan–depends on cutting billions out of the health care budget, it now seems to be in jeopardy, too. It’s now a real possibility that Congress will go into the August break having accomplished nothing on health or taxes. Factor in the daily dramatics of the batshit Trump White House, and members of Congress have little bandwidth left over for rethinking internet regulation.

Still, I’m told, the staffs of some members are studying the options. One major bill aiming at a net neutrality law was introduced May 1 by a group of nine Republican senators. The Restoring Internet Freedom Act would remove for good the right of the FCC to classify ISPs as common carriers to be regulated like public utilities. But the bill was sent into committee and hasn’t been heard from since.

Some in Congress are still hoping to craft a solution. “What the internet needs to end regulatory uncertainty and recurring threats of litigation is an enduring, bipartisan law from Congress to protect internet freedom by codifying widely accepted net neutrality protections,” Sen. John Thune (R-SD), the chairman of the Senate’s Commerce Committee, wrote in a recent op-ed. “If Democrats and Republicans have the political support to work together, we can together enact a framework that provides the net neutrality protections wanted by so many internet users, reasonably limits the whims of partisan regulators, and grants the necessary flexibility to protect consumers from future harm.”

On Tuesday, digital rights group Fight for the Future turned up the heat on Congress with crowdfunded outdoor billboards targeted at lawmakers who support gutting net neutrality rules, and a “congressional scorecard” on where they stand. But the aim, the group says, isn’t legislation—that wouldn’t be strong enough to protect net neutrality, they argue. Instead, they want to pressure lawmakers to support stronger FCC rules. So far, it said, it has raised $50,000 for the billboards.

ISPs interested in rolling back the rules, like Comcast, Verizon, and AT&T, have also issued calls for congressional action on net neutrality. But that’s mainly because big ISPs are very confident in their lobbying power with the GOP-controlled Congress, and excited about the possibility of helping to write a new law, complete with loopholes. See, for instance, Congress’s recent tearing apart of the FCC broadband privacy rule that would have prevented ISPs from selling the personal information of their customers without their permission—a victory for the companies that has proved wildly unpopular with most Americans.

Meanwhile, the Internet Association, which represents companies like Google, Microsoft, Facebook, and Amazon, has indicated it would be interested in working with lawmakers on legislation, too. But at the moment, they aren’t united and ready for battle. Last Wednesday’s “Day of Action” wasn’t exactly action-packed, and some people came away with the opinion that the big tech companies showed up mainly to keep up appearances. That is, they did just enough to be counted, but not so much that they might damage their influence with GOP lawmakers when the time comes to talk about the really important issues like tax reform, immigration, and repatriation.

Meanwhile, Pai’s FCC has, arguably, done a poor job of laying out to the public the case for rolling back the Obama-era net neutrality rules. For most Americans, the perception is that Pai, a former Verizon lobbyist, simply wants to deregulate an industry for the benefit of the big ISPs. The real benefit of a rollback for consumers hasn’t been clearly communicated, if there is one.

Far more adept in influencing the tax-paying public on network neutrality are celebrities like John Oliver, who oppose rolling back the existing rules. Polling shows that Americans are strongly against doing away with the Open Internet principles. As of Monday, the last day for public commenting, the FCC had already received more than 8 million online comments on the matter (although one study claims 1.2 million of them are fake or from overseas). Another comment period, for rebuttals to the existing comments, is set to end in August.

So far, however, all the popular opposition for rolling back net neutrality rules doesn’t seem to have influenced the FCC very much. Reports say the commission is driving forward with its intent to deregulate. But it’s not yet laid out a detailed proposal for a set of regulations that will take the place of the Open Internet Rules (it will presumably do that after the comment periods are over), as well as a clear description of the regulatory ground supporting them.

Pai argues that previous FCC’s network neutrality rules were “preemptive” because no major abuses had happened, and that the regulations would stifle investment. But if you buy into the argument that the internet is an essential service in the 21st century, like water, roads, and schools, it follows that government should play a role in protecting consumers from the handful of large companies that provide it, before, not after, the fact.

While big ISPs pay for the upkeep and upgrade of their networks, they’ve also been permitted by the government to establish markets where little or no competition exists. They’ve also been the beneficiaries of big federal tax breaks over the years.

Not content to collect large monthly fees from consumers, they want to further monetize their networks by charging to prioritize the web traffic of large internet companies that can afford to pay extra. That’s not only double dipping, but it puts large ISPs in a position to control what content end users will see, and nudges the internet closer to the paradigm of cable TV.

In exchange for all the perks they’ve received, big ISPs owe taxpayers something, and should accept a modest set of net neutrality guarantees—ones that are affirmed by a bipartisan agreement set in law, not subject to the shifting sands of noisy politics.