by Rick Boucher

Don’t let Title II be the enemy of the good

Mar 27, 2019

Former Congressman Rick Boucher, founder of the House Internet Caucus, says Congress has before it the best opening since the net neutrality debate began 15 years ago for a bipartisan open internet bill.

The debate over net neutrality has raged for most of this century. But today there’s a good opportunity to settle it and to stop the regulatory ping-pong that has become a dreary spectacle.

Why? It’s simple. Republicans have now adopted the same position on the fundamentals of net neutrality protections that Democrats have maintained for more than a decade. That’s an opportunity for real compromise.

Three Republican bills now introduced by House Energy and Commerce Committee leaders – Greg Walden (R-OR), Bob Latta (R-OH), and Cathy McMorris Rodgers (R-WA) – contain the essential provisions that Democrats wanted in their own bill in 2010 and that were implemented in a Federal Communications Commission (FCC) order under a Democratic majority. These core protections prohibit blocking or throttling of legitimate online content and disallow paid prioritization in the manner that Democrats favored in 2010 and that Chairman Genachowski placed in his 2010 Open Internet Order.

In 2010, I was the Democratic chairman of the Communications Subcommittee of the House Energy and Commerce Committee, which has jurisdiction over the FCC and internet issues generally. At that time, most of my Republican colleagues strongly opposed putting net neutrality principles into statutory law. Because of Republican opposition, we could not get bipartisan support for a bill, and when it became obvious that legislation protecting net neutrality would not be enacted by Congress, the FCC adopted its own rules in the 2010 Open Internet Order. That order failed in court due to a finding of inadequate statutory authority, and no legislation protecting net neutrality emerged from committee during the period of Republican control of the House from 2011 to 2018.

Now we are seeing a tectonic shift. The Republican bills have embraced the core net neutrality protections that Democrats have for so long and so strongly advocated. This 180-degree pivot by Republicans creates the best opening for a bipartisan net neutrality bill that we have seen since the debate began 15 years ago.

Keep broadband classified as a Title I information service

But it’s important for Democrats to remember what we supported in 2010 and why we supported it.  In 2010, both the Democratic bill in the House and the Open Internet Order continued the classification of broadband as a Title I information service – not a Title II telecommunications service. The distinction is vital. Title II rules were designed for the single service telephone monopoly of the 1930s. They are completely inappropriate for the competitive multimedia internet of today. Title II gives the FCC a large arsenal of powers befitting the regulation of a large utility monopoly, including the ability to set rates or require network unbundling. While the FCC may elect to forbear from imposing all of these rules, the uncertainty about how extensive Title II internet regulation will be is a major detriment to broadband investment. Simply stated, without knowing what the rules are going to be from one day to the next, carriers are reluctant to put tens of billions of dollars at risk in building out broadband networks.

It’s also useful to remember that, from the earliest days of the commercial internet in the 1990s until 2015, broadband was a Title I information service with light regulatory oversight at the FCC. For only two years from 2015 through 2017 was broadband classified as a Title II telecommunications service. And during that time, there was a notable decline in broadband investment due to regulatory uncertainty on the part of carriers.

The provisions Democrats supported in 2010 struck the right balance, supporting both strong network neutrality guarantees and pro-investment information services status for broadband. It was the right balance then, and it’s the right balance today. 

But Title II has become a shibboleth among many Democrats and activists. It was adopted by the FCC in 2015 as a way to assure that there was a statutory foundation for net neutrality rules. But if Congress directly enacts net neutrality protections and empowers FCC oversight, Title II is totally unnecessary. The FCC would derive its authority directly from the statutory provisions. Appending Title II onto statutory net neutrality guarantees achieves nothing but is a major drag on investment.

Seize the opportunity for bipartisan compromise rather than clinging to Title II

Title II should not become an end in itself. Legislation classifying broadband as a Title II service cannot pass the Senate where proponents could not assemble the requisite 60 votes. If insistence on Title II becomes the House position, Democrats will fail to achieve in this Congress their long-held goal of establishing strong net neutrality protections. It’s hard to understand why the opportunity to give statutory permanence to internet openness should be squandered on the altar of an ill-defined Title II ideal.

It’s not surprising that the debate has been so prominent, and at times bitter, given the increasing importance of the internet in our national life. But a solution, codified in statutory law, is now within reach. Congress should seize it on a bipartisan basis thanks to the adoption by Republicans of a Democratic position that made sense in 2010 and makes sense now. It’s time to put this debate to rest, to end the regulatory ping-pong that harms investment and delays broadband deployments. 

Together, we can make internet policy bipartisan again and let the internet flourish, as well as set a model, in an important sector of the economy, for the bipartisan cooperation that the people want from Washington.