The fight over net neutrality today can be reduced to a single sentence: Everyone is suing everyone else. Congress should step in.
The Justice Department said Sunday it will take California to court over its law requiring Internet service providers to treat all traffic equally. Those ISPs were already primed to sue states on their own. And California is one of more than 20 states suing the Federal Communications Commission over its repeal of the Obama administration’s rules. “We’re not out to protect the robber barons. We want to protect the people,” California Attorney General Xavier Becerra (D) told us.
The FCC abdicated its responsibility on net neutrality when it repealed the old rules with no adequate replacement. Now, without setting forth its own rules, the federal government is seeking to block states from creating their own. That may be frustrating to Americans who want an Internet where providers do not dictate what information reaches them and how fast. But a nationwide framework governing net neutrality would be preferable to a patchwork of state regulations establishing local regimes for systems that transcend borders. And creating that framework is up to Congress.
The Obama administration rules overturned by today’s FCC sought to treat broadband as if it were a public utility under Title II of the Communications Act. That was a mistake. Sending ISPs the message that wiring they had invested in no longer truly belonged to them might have discouraged innovation, especially amid the race to 5G, and reclassification opened the door to burdensome strictures. But Congress could craft a law that focused only on prohibiting unfair practices and granted the FCC and Federal Trade Commission appropriate enforcement authority.
That law would have to allow providers room to manage congestion on their zero-rating networks, while prohibiting paid prioritization that lets industry leaders cut deals at the expense of consumers and smaller competitors. Congress should also try to preserve practices that help consumers. When a company builds its servers physically closer to a provider’s, for example, data reaches users faster — but if only incumbent companies have the wherewithal to make those agreements, newcomers might suffer.
Zero-rating, or allowing consumers to access some websites or services without it counting toward data limits, raises similar issues: Low-income clients may prefer some free Internet to none at all, but providers picking and choosing what reaches those users can quickly become problematic. Congress should tell providers to explore ways for consumers to choose what data they want to prioritize, rather than allow providers to choose for them.
Net neutrality done right could foster investment by forcing providers to compete by making their networks broader and better. Federal authorities say it is their job, not states’, to take the issue on. Congress should make sure they do.