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Framing Net Neutrality Standards We Can Agree Upon

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By now, you’ve probably heard about net neutrality, the principle that Internet Service Providers (ISPs) should not favor some online traffic and data over others.

It shouldn’t really be a controversial matter because virtually everyone agrees on the basics, and it is fundamentally just common sense—there should be a level playing field online. So, if you are a small-business owner, your customers ought to be able to access your site as easily as a larger corporate retailer; likewise, a user should be able to load content from their favorite independent blogger just as quickly as content from a major media outlet.  It makes good business sense for providers to practice net neutrality with or without federal regulations.

But from a public policy standpoint, the question is how do we best ensure that net neutrality is adhered to? There are at least two possible paths forward.

The first is to treat the internet as if it were a public utility like electric or telephone service; but this is highly problematic. In 2015, the Federal Communications Commission (FCC) under President Obama chose this approach even though the decision flew in the face of decades of the internet flourishing under cautious federal regulation. And although it managed to apply utility regulations to the internet, the measures have little to do with net neutrality as the regulations were, of course, never intended to address internet networks when they were conceived some 80 years ago.

The second path is for Congress to pass legislation that would establish how much oversight the government has on the internet once and for all. This is preferable from my perspective as it would incorporate many bipartisan voices and would finally provide certainty for the business community by preventing successive administrations from constantly changing the rules. The legislative route would also be ideal because it could be written with the internet specifically in mind in order to ensure it includes net neutrality principles that are reasonable and enforceable.  

Any such legislation should provide minimal government oversight, somehow limit the ability of the FCC or other government entity from formulating regulations that don’t represent the will of Congress and the American people, establish a level playing field for all involved, and assure transparency so that the consumer understands what he/she is experiencing and why.  And any legislation should be fully debated in Congress and in all media venues so that the pros and cons of what is being suggested is understood by the majority of our citizens.

In the meantime, the FCC, led by its new chairman tapped by the Trump Administration, can review and reverse the most detrimental aspects of the utility regulations imposed in 2015. But without lasting legislation in place, the back and forth policymaking is causing upheaval in the marketplace and deterring investment in new broadband infrastructure.

There is data and anecdotal proof that this is more than just speculation: the public utility model is costing us real opportunities for innovation, economic growth and job creation. In Southwest Virginia, for example, a rural internet provider argued it was forced to stop investing in its rural broadband service in 2015 due to the FCC’s decision and the new legal fees associated with it.

A study by the Phoenix Center for Advanced Legal and Economic Public Policy Studies found that the sheer threat of utility regulation decreased investment over a five year period by an average of $35 billion a year. This is money kept away from internet expansion and development.  This shows how just the suggestion of government regulation can depress business investment.

The majority of Americans just want the issue settled so lawmakers can focus on the real work of strengthening the economy. The bottom line is Congress seems to have clear constitutional authority to enact permanent, strong net neutrality protections—and now is the time to do it. The right legislative vehicle could secure an open Internet, spur more technological advances, and create jobs through the virtuous cycle that follows.

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