When the Obama-era FCC moved in 2015 to reclassify broadband providers as common carriers under Title II of the Communications Act , it did so because it had been told that their previous classification as information services put them beyond regulators’ reach. But there’s a reason using Title II was not the FCC’s initial inclination: It subjected broadband companies to strictures designed for old-school telephone firms, including a mandate that they allow open access to their wiring infrastructure as well as the possibility of government-set rates. Industry protested, and the current FCC under Chairman Ajit Pai repealed the rules with nothing to replace them.
Congress has an opportunity now to replace those rules with something more nuanced, but the bills introduced this week miss the mark. Instead, they bring back Title II. Democratic bills would make permanent limitations on rate-setting and other regulatory practices that have alarmed providers, but the classification is still toxic — and outdated.
Lawmakers would do better to focus on the three bright-line prohibitions on which most parties have come to agree. Those are bans on blocking websites and services, as well as slowing them down or speeding them up to favor a company’s own content or in exchange for payment. Any rules should otherwise allow providers to manage congestion on their networks as long as they make those management practices transparent to consumers. Congress should also give the FCC meaningful enforcement authority against harmful and anti-competitive practices along with the ability to write future rules to enforce net neutrality. Lawmakers could call this whatever title number they please — as long as it’s not II.
Net neutrality was officially repealed last summer, and the Internet is not dead yet. But the dramatic harms to investment that opponents predicted when the Obama-era rules went into place did not materialize then, either — except for smaller service providers, whose trouble stemmed from the same Title II flaws Congress could avoid today. Whether the Internet really needs “saving,” there’s room for legislators on both sides of the aisle to protect it. It’s time to start trying.