Jonathan Spalter

Net Neutrality’s New Pennywise

Net Neutrality’s New Pennywise

For 20 years, proponents of so-called Title II net neutrality have argued the only way to ‘save the internet’ is to impose 1930s-era Ma Bell telephone regulations on today’s broadband networks. Yet five years since that approach was last rejected, even the most jaded have to admit the sky hasn’t fallen.

Broadband speeds are getting even faster. Connectivity prices remain among the most inflation-resistant in our economy. Investment—both from the public and private sectors is at or near all-time highs. As a result, more Americans are getting connected than ever before. And they have more options than ever before.

Rather than ending the connected world as we know it, the repeal of Title II offered a powerful, years-long demonstration of just how much progress can be made when government and industry work together to get the big jobs done for consumers and our connected economy.

The reality of the Title II rollback called out the doomsayers’ bluffs. At the time, I noted that ‘I genuinely look forward to the weeks, months, and years ahead when none of the fire and brimstone predictions come to pass.’ I was confident this prediction would hold true, as it has. What I did not foresee – despite not only the absence of a problem, but the clear evidence of transformative solutions – was that the FCC would rewind the tape and begin again, dusting off the totally discredited argument that the internet’s future hinges on going backward in time nearly a century to the policy days when our nation was first leaving behind the horse and buggy as a primary mode of transportation.

It’s a challenging pitch. The FCC’s current proposal fails to identify a single violation — by any ISP, large or small — since the 2018 Title II repeal. As a result, after two decades of one of Washington’s most tedious debates, the Commission is grasping at entirely new rationales for reinstating these musty rules.

Take, for example, the Covid-19 pandemic. To be sure, the pandemic shined a glaring spotlight on the essential nature of connectivity. But it is a whiplash-inducing non sequitur to then claim this universal truth supports resurrecting century-old policies.

In fact, the essential nature of broadband makes the opposite case. During the pandemic, the U.S. stood head and shoulders above other countries. Our networks withstood the surge in connectivity. Meanwhile, European networks – after decades of hyperregulation and lackluster investment – performed a staggering 83% slower. Things got so bad that European broadband consumers were encouraged to switch from high definition to standard definition streaming to ration bandwidth. While leaders there are now rethinking aspects of their regulatory approach, the FCC is proposing—yet again—to emulate it.

Indeed, their proposal reads like a casting call for the upcoming streaming prequel to Stephen King’s “It,” serving up Pennywise and a veritable who’s who of modern-day monsters lurking under the bed. Scared of cyber-terrorists?  Title II will protect you. Fear hurricanes? Title II can ensure your community bounces back. Worried about Russian and Chinese global domination?  With Title II, you can keep calm and carry on. Meanwhile, national security and public safety experts – long in the trenches on a daily basis – are mystified by these politically convenient and far-fetched claims.

As we will point out in our comments on the proposal, there is a very strong likelihood the Commission’s approach simply will not make the cut legally. As two solicitors general under former President Barack Obama have made clear, the Title II proposal is on a collision course with the law. Under the major questions doctrine, federal agencies like the FCC do not have the authority to decide issues of major political or economic significance unless Congress has explicitly authorized them to do so. And despite Congress’ awareness of the long-standing net neutrality debate, it decided to appropriate tens of billions of dollars to fund new broadband deployment, adoption, and affordability programs without reclassifying broadband as a Title II service.

We can, we must, do a whole lot better. Rather than becoming bogged down in yet another pointless Title II saga, we should be focused together – government working with industry — on issues that actually matter. First and foremost is achieving connectivity for all. I believe we can all agree it is essential to ensure the internet remains fast, open, innovative, and fair. We can’t do so by relying on rules crafted decades before it even existed. While Washington is being corralled once again into a debate about horse-drawn carriages, the world is moving on to electric vehicles. One conversation is hopelessly stuck in highly problematic nostalgia about the past. The other is focused on a brighter connected future for everyone. It is my deep and abiding hope that we find our collective way back to the future and renew our work getting the big things done together.