Is Congress on the Verge of a Net Neutrality Compromise?

May 30, 2019 | by Andrew Regitsky

Is Congress on the Verge of a Net Neutrality Compromise?

Some topics are so outlandish we hesitate to write about them for fear of being labeled a deranged optimist. Today’s certainly fits that description. After years of refusing to compromise on a set of principles that would protect Internet users while incenting ISPs to invest in their networks and offer creative services to their customers, the two political parties may begin to work together. If so, they will do so after years of pleading by every faction of the industry, sick of living with the continued uncertainty and court battles over Internet regulation.

The current interest in compromise began ominously in April when Democrats in the House of Representatives passed a bill that would reinstate the 2015 Net Neutrality Order in full. In short, it would forbid blocking, throttling and paid prioritization of Internet traffic, give the FCC complete control over all ISP Internet conduct, and reclassify broadband Internet access service (BIAS) as a Title II telecommunications service. The bill managed one Republican vote.

The Republicans in the House offered their own unpalatable alternatives, including granting freedom from net neutrality for 5G and multi-gigabit broadband networks, permitting zero-rated data services with no restrictions and keeping the Title I information classification for BIAS. The Democrats quickly rejected these proposals.

Not surprisingly, when the bill moved to the Senate, the Majority Leader Republican Mitch McConnell called it “dead on arrival,” and would not even schedule a vote. Remarkably, however, instead of this issue languishing indefinitely, two Senators—Republican Roger Wicker and Democrat Kyrsten Sinema—started a bipartisan working group to foster a net neutrality compromise.

In a March 13, 2019 press release, the Senators stated:

The mission of this working group will be to put partisan politics aside in order to provide permanent internet protections. We need clear rules of the road that prohibit providers from blocking or throttling access to lawful content and provide transparency and consumer choice. We invite our colleagues on both sides of the aisle to join us in this effort.

Democrats in the House could have remained defiant and continued their absolutist demands for the return of the 2015 net neutrality rules. To their credit, many have not. In a May 22, 2019 letter to their leaders, 47 House Democrats urged their party to work with the GOP to find a net neutrality compromise.

We, the undersigned, voted for [the House] legislation because it represented an opportunity to resolve questions that courts have struggled with for decades. At the same time, we recognize that this legislation is unlikely to become law, or pass through the Senate, in its current form. If that proves true, consumers will be left without enforceable net neutrality protections while partisan conflict continues. We believe this result is unacceptable and unnecessary.
In the spirit of passing bipartisan, bicameral legislation that can be signed into law, we are calling for the establishment of a bipartisan working group, like the Wicker-Sinema effort in the Senate. As the Senate begins its bipartisan negotiations on net neutrality legislation, the House must also begin a process of forging bipartisan consensus. Various models for legislation could achieve our goals of providing strong, enforceable net neutrality protections for consumers.

Consumer groups immediately trashed this letter, claiming that Democrats are caving to Republicans and the “big money” ISPs. However, a net neutrality compromise is not very difficult to imagine. Its contours have been stated many times. Republicans and Democrats already agree there should be no blocking or throttling of Internet traffic. While there is disagreement about paid prioritization, we believe a fair compromise would allow it if economically justified. This freedom exists today under Title II where “lawful” differences in prices for similar services are permitted.

An equitable compromise would mandate Internet regulation governed by the FCC and not the inexperienced Federal Trade Commission. Moreover, there would be no difference in how networks are treated regardless of technology.

Once Congress creates these rules for the FCC to administer, BIAS classification becomes less important. While the Commission should not be permitted to control prices in advance of a service offering, it should have enough enforcement authority to stop unlawful discrimination, along with the power to ensure complete transparency of ISP pricing, terms and conditions.

The fact that the DC Circuit Court of Appeals is expected to rule on the 2017 Restoring Internet Freedom Order this summer is not a reason for delay. It is clear the losing party will appeal the opinion to the Supreme Court, guaranteeing continued years of uncertainty over the fate of Internet regulation. That is why Congress should not wait for courts to decide. It should act now, while there finally is a bipartisan effort to solve this long-time festering issue.