Bloomberg Law: With Net Neutrality Milestone Reached, What Now?

By Hon. Rick Boucher

Largely without notice, a milestone was reached in the long-running and contentious debate over net neutrality.

At the stroke of midnight Nov. 29, the deadline passed for the House to advance a Congressional Review Act resolution of disapproval on the Federal Communications Commission’s Restoring Internet Freedom Order, which was adopted earlier this year under the leadership of FCC Chairman Ajit Pai. Under that order, calling for Tier I, “light-touch regulation,” we were already seeing welcome signs of innovation and major investments being made, and these investments are fundamental to far faster and more reliable 5G networks.

While the Senate previously approved the CRA resolution, in the absence of House action—under the special CRA rules—expedited procedures may no longer be employed to overturn Chairman Pai’s order.

Congress should seize the opportunity of the death of the CRA resolution to resolve the longest-standing and most controversial information technology policy debate of this century. The fight over net neutrality has raged for more than a decade and, due to its intensity, has marginalized from the congressional agenda many other matters deserving attention.

The critical question at this juncture is what’s next for net neutrality?

Title I, Title II Debate

In 2015, in the name of requiring that broadband providers respect net neutrality principles, the FCC changed the designation of broadband, reclassifying it from a Title I information service to a Title II telecommunications service. Title II common carrier rules were designed in the 1930s for the Ma Bell monopoly rather than for competitors and innovators in today’s vibrant, converging, cross-platform broadband market.

Under Title II rules, the FCC has broad powers, including the setting of rates and other terms and conditions of service, such as the requirement for unbundled networks, for example. From one day to the next, carriers simply do not know which of these sweeping powers the FCC may choose to employ. With the attendant regulatory uncertainty, carrier investments fell. And when investment falls, both broadband deployment and innovation suffer—exactly the opposite of what should occur at a time when ever greater volumes of our communications are internet-based and moving to wireless services.

The Restoring Internet Freedom Order returned broadband to Title I information services status.

Chairman Pai’s order reinstated rules for the internet that had been in place for nearly 20 years under both Democratic and Republican administrations, rules first implemented during the Clinton administration. Under that two-decades-long bipartisan consensus in favor of light-touch regulatory treatment, we saw the internet grow and flourish. The regulatory certainty of information services status opened the door to investments that made the American communications network the envy of the world.

Simple Statute Needed

But this is not where the debate should end, because to stop here would only ensure that the controversy continues with each succeeding FCC engaging in a protracted ping-pong match between Title I and Title II status for internet regulation.

That would create an untenable circumstance for carriers, who will not put at risk tens of billions of dollars in capital expenditures without a long-term understanding of the rules that will govern the use of their networks. It’s a surefire way for America to lose the race to 5G.

Only Congress can put the issue to rest with the necessary finality and create through statutory permanence the required regulatory certainty. It can do so with a statute that addresses the issue in a holistic manner.

It would be a simple statute with two basic components. The first is to put the core principles of an open internet into statutory law, settling once and for all the net neutrality debate.

The second is to give statutory permanence to broadband as a Title I information service, providing the long-term regulatory certainty that will facilitate carrier investments.

Such a statute lends itself to bipartisan cooperation. There are incentives and wins to be had for both Democrats and Republicans. Democrats would achieve their long-sought goal of assuring strong net neutrality principles, and Republicans would achieve their goal of having broadband permanently classified as an information service. The potential for such an arrangement has been under discussion by key policymakers in both the House and the Senate for the past two years.

So, let’s not shy away from the debate. The failure of the CRA resolution of disapproval is an opportunity for both sides to work together in a bipartisan fashion on legislation that will settle the net neutrality issue once and for all.

Hon. Rick Boucher (D-Va) represented a rural congressional district in southwest Virginia for 28 years and chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet. He is honorary chairman of the Washington, D.C.-based Internet Innovation Alliance (IIA) and head of the government strategies practice at the law firm Sidley Austin. The views expressed in this article are those of the author and not necessarily those of Bloomberg Law.

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