Don’t Freak Out About the FCC’s New Approach to Net Neutrality

[Commentary] President Barack Obama made it seem as if Title II is the only way to protect the free and open internet, and the result was 2015’s comprehensive regulatory order enshrining net neutrality. But some critics of the 2015 order insist that the Federal Communications Commission could have used more limited approaches that might have relied primarily on Title I or on Section 706 of the Telecommunications Act of 1996. They’ve argued that Title II classification is both bad policy and bad law, but so far, the 2015 order has survived its challenges in federal court. Now FCC Chairman Pai—who had served as a Republican commissioner for four years during Obama’s presidency—has proposed new rules that would roll back the 2015 order and reverse broadband classification under Title II. Of course, rolling back the 2015 framework also could mean that broadband providers feel more freedom under the FCC’s rules to block, throttle, or prioritize services—something that ISPs could certainly use unfairly. But revisiting the 2015 rules may also enable providers to do the kind of “reasonable network management” that President Obama mentioned, like allocating more bandwidth to video streaming services or lower latency for Voice over Internet Protocol services.

Some advocates see the reversal of the Title II classification as a threat to the very possibility of net neutrality. But the fact is that even when the Democrats held a majority of seats on the commission during Chairman Tom Wheeler’s chairmanship and before, there was some widespread belief at the commission that net neutrality might be achieved through non–Title II approaches—until President Obama urged the commission to use Title II instead. What’s more, Chairman Pai says he welcomes public input and wants to build a bipartisan consensus—like the one that has informed commission policy since at least the Clinton era—about how to deal with net neutrality issues. Pai also insists that he has been “pretty consistent about my view that I favor a free and open internet.” Some critics of the latest move may dismiss Pai’s statements as empty rhetoric, but dismissing the invitation to contribute to this new proceeding will only hurt the debate over the future of net neutrality.

[Mike Godwin is a senior fellow with the R Street Institute. Tom Struble is a technology policy manager with the R Street Institute.]