Now that the Republican-controlled Federal Communications Commission is officially scrapping the Obama-era net neutrality regulations, it is taking all my will power not to crow to the hardline activists on the broadband Left: “I told you so.”
In 2015, the FCC, then under chairman Tom Wheeler, classified broadband as a Title II telecommunications service and enacted strict regulations on it. We at the Information Technology and Innovation Foundation (ITIF) wrote at the time that the odds of the decision being overturned — either in court or with a future Republican administration — were not insignificant. And given that risk, we argued, the prudent course for net neutrality advocates was to seek a legislative compromise that could have essentially locked open internet protections that could not be easily overturned either by a court or Republican administration.
We argued, moreover, that liberals and Democrats were then in the strongest bargaining position they were likely ever to hold on this issue. For that reason, they could have insisted on progressive broadband legislation, including not just lasting rules on net neutrality, but also broader reforms designed to achieve meaningful progress in overcoming the digital divide. Broadband providers were not only willing to accept net neutrality legislation at the time, but were in fact actively seeking it in exchange for getting out from under the oppressive Title II yolk. Indeed, it was clear to most people paying close attention that this was the time for Democrats and net neutrality proponents to act if they really wanted to secure lasting net neutrality rules.
So lasting legislation was within reach, while Democrats’ bargaining power would diminish if the courts or a new FCC reversed Wheeler’s foray into Title II. Against this backdrop, ITIF called for a “Grand Bargain” alternative to Title II, which we labeled “net neutrality with net adoption.” The legislative deal we envisioned consisted of a set of general open internet provisions, including:
1. Clarifying that broadband internet access service is not a “telecommunications service” under Title II of the Communications Act.
2. Establishing widely agreed-upon open internet protections — including no-blocking, no-throttling, and transparency — on solid legal ground that courts could not simply overturn.
3. Allowing beneficial traffic differentiation for applications that require it, while preventing anticompetitive abuses of prioritization.
4. Giving the FCC reasonable, but bounded, jurisdiction to enforce open internet rules and accelerate the deployment of broadband.
We thought this framework for open internet rules struck a good balance among the various interests internet regulations should promote, such as protection against anticompetitive practices, ensuring consumer safeguards, and advancing innovation and incentives to invest throughout an evolving complex system. But what was most important was that there be some stable rules in place — any of the specifics would have been up for debate. But here’s the real kicker, which we thought would have enticed progressives:
5. Legislation should also significantly expand the scope and funding of digital literacy and broadband adoption programs, including the National Telecommunications and Information Administration’s Broadband Adoption Toolkit; the administration’s ConnectHome initiative (a broadband-focused Lifeline program); and initiatives to bring affordable broadband to rural areas with no wired infrastructure.
In sum, Democrats could very well have used the willingness of broadband providers to “deal” not only to get net neutrality provisions enacted into statute, but also to condition their support on real legislative action to close the digital divide. But no Democrat stepped up the plate.
Why not? Because they knew they would have been vilified by net neutrality zealots as a sellout who were too willing to sacrifice Wheeler’s Title II “commandments” for a “compromise.” Wheeler himself made the situation worse. After netroots protesters backed him into a political corner — and on one occasion wouldn’t even let him out of his driveway — he became an eager convert to net neutrality absolutism, rejecting calls for any legislative solution.
Well how did that turn out? The net neutrality advocates now find themselves back to square one, without any FCC guardrails or digital divide funding. They got nothing. Zealotry may feel good and gin up lots of donations, but it doesn’t produce real, lasting results.
But the issue has not necessarily been resolved once and for all. In fact, a bipartisan legislative solution along the lines ITIF proposed in 2015 is still in everyone’s interest.
To be sure, Democrats are in a much weaker bargaining position today than they were then, but their position cannot be completely dismissed. Indeed, whether or not it’s based on valid policy analysis (it’s not), net neutrality regulation enjoys widespread public support. So Republicans shouldn’t get too cocky about their ability to roll back what they see as regulatory excess. The 2020 election could very well deliver a Democratic president and a Democratically controlled FCC, who may not only reinstates Wheeler’s Title II mistake, but do so with price controls and other remnants of monopoly-era regulation included.
Essentially technocratic policy issues should not be left undecided, swinging back and forth between extreme positions. How are the relevant businesses supposed to plan? Unfortunately, however, net neutrality has become a Manichean, ideological debate, full of heroes and villains. We can only hope that such policy debates one day go back to being relatively non-ideological and non-partisan, with stakeholders from all sides working together to promote the best interests of both businesses and consumers. In the meantime, conservative and liberal partisans should take note: All-or-nothing administrative victories are sweet, but fleeting. So, bipartisan, legislative compromise anyone?
Robert D. Atkinson (@RobAtkinsonITIF) is president of the Information Technology and Innovation Foundation, the country’s top think tank for science and technology policy.