According to Recode, if you blinked you missed the Internet Day of Action last week. This day of action was promoted by net neutrality supporters in opposition to the Federal Communications Commission’s (FCC) efforts to roll back the public-utility style regulation of broadband. A host of websites and advocacy groups expressed their support for net neutrality and urged users to make comments to the FCC.
Although the effort managed to garner nearly 2 million pre-written comments to the FCC supporting net neutrality (assuming each comment was actually sent by different individuals) only 1 percent of those who voted in the 2016 election formally commented to the FCC. Why did most Americans virtually “stay home” on the Day of Action? Although some argue that the participant websites did not make their net neutrality efforts easy to find online, the truth remains that most Americans are generally not motivated to become net neutrality activists.
Why are most Americans not fired up about net neutrality? People generally become motivated to engage with their leaders on issues that are genuinely controversial. Here, Americans generally agree when it comes to the core principles of neutrality. In fact, 75 percent of those who support President Trump agree that websites should not block or throttle (slow down) access to legal websites and other content on the internet. Even the internet service providers (ISP) who are subject the FCC’s net neutrality regulations expressed support on the Day of Action for policies that promote an open and free internet.
Title II is the problem and not Net Neutrality
The biggest issue of controversy surrounding net neutrality is how to achieve a free and open internet. The U.S. Chamber in comments to the FCC has argued that it is possible to enact policies that promote net neutrality while refraining from treating broadband providers like public utilities under Title II of the telephone-monopoly era 1934 Communications Act. The current rulemaking calls for removing the Title II designation of ISPs but does not specifically call for eliminating bright-line net neutrality rules—which as previously mentioned, polls well with the public. Speaking of polls, most Americans do not agree with treating the internet like a public utility.
Many advocates of using Title II to regulate the internet argue that Title II is necessary to give the FCC the strongest legal footing to enforce net neutrality rules. Unfortunately, the “surest” fixes for a problem can be worse than the “problem” at hand. For example, if a patient went to a doctor for an ear infection, removing the ear would be the surest way of getting rid of the problem but would leave the patient with diminished ability when a more reasonable cure was available.
Title II is essentially a harmful “remedy” that impairs the investment needed for the American people to communicate. The voices arguing for Title II ignore the fact that investment in broadband declined for the first time—other than the dot.com bubble burst and the Great Recession—in the year after Title II. This investment could have been used to bridge the digital divide in rural and low-income areas to make it easier for students to access their homework or to enhance public safety. There is tangible evidence of real harm caused by treating broadband like a public utility.
How should policymakers address the millions of comments?
Now that the first round of comments in the Commission’s Restoring Internet Freedom proposed rulemaking has ended, the Commission later this summer will need to begin the long task of wading through the millions of comments that were submitted by the public. Chairman Ajit Pai has stated that “the raw number [of comments] is not as important as the substantive comments that are on the record.” Chairman Pai is right to take this approach because it ensures that the Commission is making the best decision based on solid legal and factual grounds. In fact the main reason agencies like the FCC are given so much deference by courts is grounded in the Supreme Court’s Chevron case which held that agencies have technical expertise that courts do not have.
The Commission should give weight to those substantive comments which provide technical and legal expertise and follow the D.C. Circuit Court of Appeals roadmap to achieving net neutrality without using Title II as outlined in the 2014 Verizon case. The FCC should eliminate the Title II public-utility style treatment of broadband while working to enact polices that promote net neutrality.
Who should consider the sheer volume of comments filed by net neutrality supporters? The simple answer is Congress. Last week, Senator Richard Blumenthal (D-CT) stated that legislation may be the answer for net neutrality. Chairman of the Committee on Commerce, Science, and Transportation, John Thune (R-SD) agrees that net neutrality legislation is necessary. In fact, in the last Congress draft legislation was considered that would permanently codify net neutrality protections while eliminating the public-utility treatment of broadband.
Most Americans agree that net neutrality principles are good for the internet and for our economy. Unfortunately, using archaic laws that do more harm than good are not the answer to achieve this objective. The FCC and Congress should in their own legally appropriate ways examine the comments of millions of Americans who are participating on this issue and get to work on maintaining a free and open internet while not engaging in regulatory overreaches.