The Future of Net Neutrality

November 19, 2020 | by Andrew Regitsky

The Future of Net Neutrality

The election has not yet been certified but consumer advocates are already demanding that the upcoming Biden-era FCC restore the net neutrality rules, which would enable the agency to heavily regulate ISPs.  These net neutrality proponents argue that:

Broadband Internet access service (BIAS) must be classified as a Title II telecommunications service to enable the Internet to be regulated as a public utility, including regulating prices of all Internet services.

The bright line net neutrality rules which forbid blocking, throttling and paid prioritization of traffic, must be restored.

The FCC should restore the Internet “conduct” rule, enabling the agency to approve all proposed new Internet services or practices before they are introduced to the public.

The FCC’s ability to punish net neutrality offenders rather than leaving enforcement decisions to the Federal Trade Commission (FTC) must be restored.

Here’s the liberal website vice.com celebrating the likely departure of Chairman Ajit Pai from the FCC.  Pai, of course, is the leading supporter of minimal Internet regulation.

Pai’s tenure was a minefield of controversy. In no small part due to Pai’s repeal of net neutrality, which not only eliminated rules preventing ISPs from behaving anti-competitively, but much of the FCC’s authority to police widely-disliked telecom monopolies at all.

 

Instead, that responsibility fell to the FTC, an agency experts say lacks the authority or resources to hold telecom giants accountable (the entire point of the telecom industry gambit).

 

Pai repeatedly and falsely claimed that net neutrality had stifled sector innovation, job growth, and U.S. broadband investment. He then repeatedly claimed that repealing the rules would drive a massive investment in new broadband networks. But earnings reports, independent research and CEO statements alike made it clear that never actually happened.  (“Bye Bye, Ajit Pai: FCC Boss Will Soon Lose Top Spot,” vice.com, November 11, 2020).

Large ISPs are not fools.  They are proactively arguing that a return to net neutrality is unwarranted.  USTelecom, their association, quickly released a broadband plan for the new administration called “First 100 Days, Building Our Connecting Future.”  Net neutrality is not part of this new plan.  Instead, the association makes several broadband recommendations, including:

Finish the Job of Connecting Every American

Tackle Broadband Affordability—Starting with Our Kids

Any New Online Consumer Protections Must Be Modern, Consistent and National

Strengthen Global Leadership on Cybersecurity

Elevate and Coordinate Technology Policy at the White House

Just to be clear, a new FCC cannot just wave a wand and restore the net neutrality rules.  The Administrative Procedures Act (APA) requires the Commission to begin a new proceeding which would include receiving comments from the public.  Any decision to restore the net neutrality rules would almost certainly involve litigation including a potential trip to the Supreme Court, which due to its overwhelming conservative majority would be expected to favor ISPs.  No matter what side you are on this issue, it is beyond debate that any attempt to once again regulate the Internet will lead to more years of industry uncertainty at a time when we need the Internet the most.

We have never been fans of the net neutrality rules, believing they were so heavy-handed they would stifle innovation and investment.  Advocates did a great job panicking the public in the first net neutrality proceeding, claiming that Internet traffic would slow to a crawl and consumers would have to pay more to ensure their traffic was not blocked or throttled.  Of course, this hasn’t occurred, and a fair observer would have to admit our Internet has worked well even during the increased demand generated by people working and spending more time at home.

That is not to say that there will never be bad Internet actors.  There are bad actors in every part of our society.  However, before more intrusive Internet rules are reintroduced, let’s demand some concrete examples where the current regulatory regime has failed.

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