Protecting core values within net neutrality

As the comment period closes on the FCC’s net neutrality proceeding, we find ourselves moving inexorably towards the creation of actual rules to protect an open internet. From the perspective of advocates for strong open internet rules, this season brings good news. In the six months since weak proposed rules leaked out of the FCC, a lively conversation about the values that core communications networks must embody has broken out. Over the course of millions of comments, time and time again that conversation has returned to societal values and goals embodied in Title II of the Communications Act.

This conversation has pushed the FCC towards strong open internet rules grounded in its Title II authority. At this point, conventional wisdom is that the FCC will move to classify at least part of broadband internet access as a Title II service. The debate is simply over how that will work. Specifically, it has started to center on what is known as forbearance. Forbearance is the process the FCC can use to determine that certain sections of Title II should not apply to broadband internet access.

{mosads}The conversation surrounding forbearance is one worth having. Title II contains many sections, some of which are fairly specific to the operation of a phone network. These sections may not apply to broadband internet access providers, and those providers should have the opportunity to petition the FCC to forbear from them.

However, it would be unwise to simply dismiss all of the sections of Title II as outdated or irrelevant. Many sections of Title II embody universal values we expect every telecommunications network – not just those based on the telephone – to embody.

Guarantees of accessibility, consumer protections from bill shock, and standards designed to assure network reliability are not only important to phone networks. Neither are prohibitions against unjust discriminations, or processes that allow citizens to bring complaints against network operators who fail to live up to their obligations.

These values, and others embodied in Title II, should not be assumed away as irrelevant or outdated. Title II was written to be technologically neutral, and Congress included many of the sections with the intent of applying them to any telecommunications network that might develop in the future.

In light of that, it would be unwise to simply ignore these provisions, or dismiss them in the hopes of reconstructing them again under different – and untested – authority. If these core values are important, it may be best to maintain them though the existing, time-tested structure of Title II.

The FCC has highlighted the core of these fundamental values for the past year after it unanimously voted 5-0 to affirm what Chairman Wheeler has dubbed the Network Compact: four overarching principles of communications networks that have been enshrined in the Communications Act regardless of changes in technology. Prior to that bipartisan vote, Public Knowledge and others had been preaching the importance of these Network Compact values, with significant agreement from major industry players.

It would be a shocking retreat from this consensus building compact if policy makers in Congress and the FCC allowed the section of the Communications Act that protects much of the Network Compact to be ignored when applying it to broadband. Net Neutrality may be the hottest topic in beltway telecommunications policy circles, but it does not supersede the core values of the Network Compact. With that understanding, it is reasonable to begin to take a closer look at specific sections of Title II to determine if all of them should apply to broadband internet access.

Unfortunately, many in Washington are quick to look for the easy political solution, for the simple reason that a legally stronger values-based solution may be politically difficult for policy makers who must try to go along and get along with big broadband providers. However, if the politically easy path is chosen, American consumers will pay, both with their wallets and in the form of fewer protections on 21st century communications networks.

Policy makers should take notice of who is watching. Millions of Americans do not comment at a small agency like the FCC on technical issues like Network Neutrality because they follow it every day. Instead, Americans are scared that Washington will give away the core protections they have come to expect for a century, in the span of one short lame duck session.

Weinberg is a vice president of Public Knowledge.