On July 12, the Electric Frontier Foundation, ACLU and many tech companies and nonprofits mobilized for a day of action in support of net neutrality. At issue: making sure the Internet remains open and accessible. This is in response to the new Federal Communications Commission’s vote to start overturning the last FCC’s net neutrality policy.
If this sounds familiar, it’s because we’ve seen this movie before. Net neutrality has become a Groundhog Day policy fight for 10 years running that we’re doomed to relive until the issue is resolved.
Over its history, the FCC has been controlled by Democratic majorities 19 times and by Republican majorities 14 times. This see-saw battle is reflected in how the issue is portrayed by elected officials. Democratic Senators Ron Wyden and Al Franken say, for example, that “Trump’s FCC chairman wants to hand the Internet over to big corporations.” “Get government out of the Internet’s business,” respond GOP Senators Ted Cruz, Ron Johnson and Mike Lee a few days later. HBO’s John Oliver has gotten into the act: His YouTube video on the subject has more than 4.5 million views — and counting. And the last time it was before the Federal Communications Commission, four million people commented.
While more advocacy is sure to continue on both sides, what will really protect net neutrality is a settlement that will survive changes of control at the FCC. That can happen if the companies, nonprofits and experts who know something about the Internet show some leadership and start putting their political and intellectual capital behind a workable agreement.
The issue itself isn’t that difficult to resolve. A decade ago, a group of content providers, network operators, academics, Wall Street analysts and public interest groups – national names – hammered out an agreement at USC’s Annenberg Center. After a polite, off-the-record discussion over the course of a single day, net neutrality “opponents” were able to create a broadly-supported set of principles that could serve as the basis for a settlement of the issue.
In 2010, many of those same interests were able to find a middle ground and support net neutrality rules passed by the FCC. The issue could have been resolved then and there. Unfortunately, one company sued because it felt that solution wasn’t free market enough.
Upsetting the settlement turned out to be a big overreach from the right-of-center. It set off a chain of legal events that led former FCC chair Tom Wheeler to use a far left-of-center solution because it was the only legal tool he had: regulate Internet services providers the same way that traditional phone service was regulated (also known as Title II regulation). Wheeler’s solution was another overreach and it will not likely survive the latest change of control at the FCC.
Virtually everyone agrees the Internet must remain a neutral space for commerce and free speech. Some interests that fear Internet Service Provider domination will accept “Title II” – or utility-style – regulation of the Internet because they trust government to restrain the private sector. Others that fear government, will accept enforcement on a case-by-case basis because they trust that ISP violations of net neutrality will be minor, accidental or marginal.
The FCC doesn’t have the legal authority to enforce a reasonable compromise so the only choices available to federal regulators are “all” or “nothing.” When Democrats are in power they will lean towards “all” and go with Title II regulation. Republican majorities will lean towards “nothing” and rely on after-the-fact enforcement.
So far, the Internet’s openness and overall neutrality has continued to thrive under both strategies. But, what a nonproductive, and dangerous, way to protect what has been an amazingly productive and rewarding economic and social phenomenon.
Long term, Congress should develop, and give the FCC the authority to enforce, a centrist net neutrality solution (like the one reached in 2010) along with the authority to make it stick (which it hasn’t had). Until it does, net neutrality will remain caught in this endless cycle.
Ed’s Note: Michael Kleeman is a Senior Fellow at UC San Diego and was one of the participants that helped draft the Annenberg Center Principles