The FCC is doing the right thing in returning to internet openness

The Federal Communications Commission took a big step in November toward undoing the 2015 Open Internet Order and its vague, over-broad regulations by proposing the Restoring Internet Freedom Order (RIFO). This order is expected to pass this week in a party-line vote.

In an era of debilitating partisanship, it’s almost shocking to recall that a Republican Congress and President Clinton worked together in the ’90s to establish the permissionless regime that enabled both internet providers and large tech companies to transform our economy. The visionary agreement codified in the 1996 Telecommunications Act declared it “the policy of the United States” that the internet — including internet service providers and websites — should “remain unfettered from Federal or State regulation.” That policy helped the U.S. cement its position as the global leader in technology innovation.

{mosads}This policy of restraint was pushed off a cliff in 2015. Following pressure from the White House, the FCC’s Open Internet Order classified internet access as a “Title II” service. This drastic move subjected the internet to telephone laws, most dating back to the New Deal. The order represents creeping FCC jurisdiction as its traditional areas of regulation — broadcast media, cable, and telephone — either diminished in importance or are transformed by the internet.

Despite being branded by advocates as “net neutrality,” applying 1934 phone regulations to the internet has had unpredictable legal and practical consequences. For example, as the Electronic Frontier Foundation and American Civil Liberties Union wrote in recent FCC filings, the current rules don’t apply to ISPs who make it clear to customers that they offer filtered internet service. The order may therefore have the unintended effect of encouraging internet service providers to filter content solely to avoid costly legacy regulations.

Following this week’s vote, RIFO is expected to face an immediate challenge in the courts. Activists and lobbyists will likely argue, just as activists and lobbyists have argued against the 2015 order, that the commission’s change in policies is arbitrary and capricious, the classification decision isn’t a permissible reading of the statute, and the commission lacks factual support for the order.

This process will again be arduous and costly. Just as with the 2015 order, which is still awaiting review by the Supreme Court, the challenge to the 2017 order is likely to be filed in and heard by the DC Circuit. After an initial decision, the losing party will almost certainly again appeal to SCOTUS. If so, there is a good chance that the legality of the 2017 order will not be settled before the next round of presidential elections.

Instead of spending time throwing stones at the FCC’s process, leaders in Congress could focus their efforts on ending this ping-pong regulatory dynamic. How? By, once again, establishing a bipartisan solution to preserving and protecting a free and open internet. 

The internet has changed significantly in the past 20 years, and there is growing consensus around the need to revisit our 1990s internet laws. But only through congressional action is it possible to preserve the crucial freedom to innovate that allows us to lead the world’s tech economy, while also preventing tech and telecom companies from abusing market power and engaging in anti-consumer practices. What’s missing is the political will to craft an effective and bipartisan solution, and to rise above continued efforts to posture and further the partisan divide.

Garrett Johnson is co-founder of Lincoln Network, a national community of technology professionals, and previously founded a Y Combinator-backed startup based in Silicon Valley. Brent Skorup is an attorney and a research fellow at the Mercatus Center at George Mason University.