Congress Shouldn’t Repeat the FCC’s Title II Mistake

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Legislative Action to Promote Needed Broadband Investment

The author, a former Congressman, argues that elevating to the status of law the FCC's light-touch Title I regulatory treatment of broadband access service is the only dependable way to address the large rural-urban broadband deployment divide and ensure investment sufficient to meet the capacity demands of 5G technology.

Rick Boucher

By Rick Boucher

Rick Boucher was a member of the US House for 28 years and chaired the House Energy and Commerce Committee's Subcommittee on Communications and the Internet. He is honorary chairman of the Internet Innovation Alliance (IIA) and head of the government strategies practice at the law firm Sidley Austin.

With its recent Restoring Internet Freedom order (FCC 17-166), the Federal Communications Commission took a major step in promoting the internet as a place of continued innovation where, with greater regulatory certainty, investors will make urgently needed new broadband deployments.

An accelerating investment climate will become even more important as the nation transitions to fifth generation wireless networks (5G) that will form the backbone of the internet of things. With the dramatic speed improvements expected through 5G technology will come exciting developments such as connected cars that communicate with each other, enabling widely available autonomous driving.

The regulatory framework and net neutrality

There’s a common misconception that “Title II” status and “net neutrality” are the same thing. They are not. Title II is statutory shorthand for the system by which the internet is regulated—whether as a telecommunications service, like the old monopoly phone network, or as a more lightly regulated “Title I” information service. “Net neutrality” deals with what network operators may do—and may not do—in the course of providing access to the internet through their communications infrastructure.

The FCC’s order reinstated bipartisan policy started under President Clinton and continued until 2015, holding that the broadband internet is not a monopoly and should be regulated under Title I of the Communications Act as an information service, rather than being regulated under Title II with heavy-handed common carrier rules. For two decades prior to 2015, broadband investment soared under Title I light-touch regulation, making America’s communications network the envy of the world. The FCC has now sensibly returned the regulatory status of broadband to that of the golden era for investment.

But opponents of the FCC’s action are rallying around a proposal to use the Congressional Review Act (CRA) to overturn the rule and default to the common-carrier regulatory policy that was adopted in 2015. We saw what happened under that policy: declines in investment, particularly in rural and underserved areas, and less innovation.

The policy experiment lasted long enough to allow us to observe the impact, but fortunately not long enough to cause real harm. There’s absolutely no need to repeat it. With a large rural-urban broadband deployment divide and the imminent arrival of 5G technology that will require even greater broadband capacity, carriers need the regulatory certainty of information service status in order to make critical investments.

To put it more directly, using the CRA to restore the idea that the internet should be governed by 1930s rules on monopolies is a highly inferior way of ensuring network neutrality and an open internet.

The need for a legislative solution

The only way to resolve this issue, once and for all, is for Congress to pass legislation that will address the real issues and guarantee an open internet without a constant game of regulatory ping-pong between Title I and Title II status with every change of administration (and the resultant change of majority-party regulators at the FCC).

Legislation should enshrine the core principles of net neutrality into law. A useful model would be the 2010 Open Internet order promulgated under Democratic FCC Chairman Julius Genachowski. Codification of the requirements of that rule, along with a provision declaring broadband to be an information service, would be a simple and straightforward legislative enactment giving both Democrats and Republicans satisfaction on their key priorities. For Democrats, the priority is open internet rules similar to the ones Democrats endorsed with the 2010 Open Internet order. For Republicans, the statute would return broadband to information-service status. It’s a win-win solution that should receive bipartisan support.

An additional benefit of legislation could be addressing needs such as clear rules for online privacy with uniform protections that will apply across the entire internet ecosystem so that consumers won’t have to wonder what protections they have, depending on how and where they access the internet. Because internet traffic crosses state and national boundaries instantly, it’s also critical to have one federal framework and one regulator rather than a patchwork quilt of regulations that would only discourage investment and confuse consumers. All sides in this debate, including immediate past chairman Wheeler’s FCC, have also agreed that reasonable network management principles should continue to be applied in an open internet. For instance, doctors doing remote diagnosis in telehealth may need preference in traffic to ensure the integrity of the procedure.

There’s a role for CRA in our legislative scheme in keeping administrative agencies in check. But in this instance, by using it activists are delaying the one solution that will deliver—with statutory permanence—an open internet for everyone.

For nearly 20 years, there was a bipartisan consensus that the broadband internet was an information service and should be regulated as such. I’m confident that, once again, the parties can come together in a new bipartisan consensus to enact legislation preserving and codifying the core principles of the open internet.

The consequences of inaction, or of simply using the CRA to punt the issue back to the FCC, are simply too great for Americans who depend on the internet every day.

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