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July 6, 2017

Whatever Net Neutrality Should Be, Title II Ain't It

 

I wrote my first op-ed about network neutrality in 2006—11 years ago. At that time, the issue was about whether internet providers could manage their own networks or be legally required to be “dumb pipes.” Net neutrality activists insisted that all traffic should pass over the network without any traffic management by the ISP, which was unworkable and stupid in a world of limited resources and ever-expanding traffic. Fortunately, that argument failed.

But the net neutrality campaign kept going, changing its arguments and positions as needed. It became a campaign against tiered pricing, even though in a burgeoning industry providers need to be able to experiment with pricing models in order to determine what best serves consumers’ interests. Besides, in almost every other industry consumers can choose to pay more for more, or pay less for less. Why shouldn’t that also apply to internet service? So the argument against tiered internet pricing (mostly) failed as well.

But net neutrality is the beast that wouldn’t die, because the campaign was never really about solving a problem—it was always driven by ideologues who resented corporate ownership of broadband networks, and thus wanted networks heavily regulated or practically nationalized by the federal government. So the arguments continued to change, even as the broadband market continued to deliver better products and services to consumers with little to no government intervention.

Because the definition of net neutrality, like the definition of broadband, kept changing to suit the ideologues’ purposes, one of the most common policy questions of the last decade has been “What IS net neutrality, anyway?” It was hard to keep track.

Finally, in one of the most audacious power grabs of the Obama presidency, the Federal Communications Commission (FCC) decided to skip right past net neutrality and reclassify broadband as a public utility under Title II, reversing the sensible policy determinations made during the Clinton administration that allowed the internet to become what it is today.

Using Title II to implement net neutrality is dangerous overkill. Title II was designed in the 1930s to regulate the pricing, deployment and service provision of the old Bell monopoly—basically to hold Ma Bell under the government’s thumb. The federal government now holds all of that power over our broadband networks, thanks to Title II.

Meanwhile, most ISPs already support much of net neutrality, so it should be relatively simple to find a consensus on broad legal guidelines for networks.

At some point, Congress will have to set these broad network policies through legislation, which is how policy is supposed to be determined anyway, not through regulatory action. But first, the FCC’s disastrous expansion of Title II regulatory power must be reversed. Because whatever net neutrality should be, Title II ain’t it.


 

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