Maybe the fourth time will be the charm for net neutrality policy. That is certainly the hope of the country’s top telecommunications official, Federal Communications Commission Chairman Ajit Pai.
On Wednesday, Pai announced that he is opening a rulemaking process to undo key aspects of an audacious regulatory framework put in place by his predecessor, Democrat Tom Wheeler, who likewise reversed course from earlier attempts to enact a workable policy to enshrine the principle that there should be a fair and open playing field for websites and services riding over broadband Internet providers’ infrastructure. This is an issue that invariably provokes hyperbolic handwringing, but Pai is moving in the right direction.
The specifics will take time for the FCC to iron out with input from industry stakeholders and the public, but the broad strokes that Pai has outlined provide a good starting point—getting rid of the ill-fitting legal mechanism that Wheeler employed while preserving some baseline rules and effective oversight from the FCC. Judging by Pai’s public comments, this scaling back, which has been long-anticipated by telecom policy watchers, appears aimed not at eliminating net neutrality protections but instead reducing the weighty regulatory baggage of the prior commission’s scheme.
At the end of the day, all can agree the Internet deserves a stable, flexible, truly bipartisan regulatory framework. But Wheeler’s heavy-handed approach, which classified broadband providers as “common carriers” under Title II of the Communications Act of 1934, sparked fireworks in all directions, highlighting the need for the FCC to find a better solution—or for Congress to step in and put this issue behind us once and for all by crafting a new, specially tailored law.
First, let’s be clear: Pai’s move does not signal the end of the open Internet. The sky is not falling, contrary to what some activists would have you believe. The Internet was wonderful and open before Wheeler’s rules were put in place in 2015, and it will still be wonderful and open if Pai succeeds in making some much-needed changes.
Pai has repeatedly expressed his favor for a free and open Internet, and has said everybody at the FCC agrees. Meanwhile, Pai reportedly has been taking meetings with various stakeholders, sussing out where there is room for agreement among stakeholders to improve policy on this contentious issue. That should be achievable, because while there have been skirmishes among stakeholders on the question of what types of conduct should be legally proscribed for various Internet actors, the basic question of whether the Web would be an open, freewheeling system versus a closed, controlled one has long been settled in favor of the former: Everyone agrees on the value of an open Internet, and should be able to get behind innovation throughout the entire Internet ecosystem.
The question is how net neutrality rules work in practice, and the answer, as the Information Technology and Innovation Foundation has argued for over a decade, is to build on middle ground. Any regulatory regime should start with clear, understandable transparency requirements around network management practices, as well as baseline protections outlawing blocking of legal traffic or capricious degradation of websites or online service. This should be uncontroversial. But it is also important to recognize that differential treatment of some Internet traffic, including paid prioritization, can make certain applications function more effectively.