Where the FCC Should Go From Here
The legal vacuum created by the Court of Appeals for the D.C. Circuit threatens the Internet that we know and love. It threatens the start-up economy. It threatens American leadership in the Internet space. That is a huge problem, and we need to fix it.
But simply adopting rules that are network neutrality in name only is not enough. Different rules—like a ban on access fees versus a ban on discriminatory or exclusive access fees—will result in vastly different environments for the use of the network and in very different application innovation ecosystems.
As we—the public, policy makers, and regulators—think through the choice between limited network neutrality regulation under Section 706 of the Telecommunications Act and more comprehensive network neutrality rules under Title II of the Communications Act, we need to ask the right questions and ask them in the right order:
1. What kind of rules do we need to protect users and innovators against the threat of blocking and discrimination?
2. How will access fees affect the environment for application innovation and free speech, and how does this affect what kind of rules we need?
3. And, finally, which foundation—Section 706 or Title II—will allow us to adopt these rules?
The answers are clear.
First, we need strong network neutrality rules that prohibit blocking, discrimination against specific applications or classes of applications, and access fees – rules that apply equally to the fixed and mobile Internet.
Second, we need rules that provide certainty to innovators, investors, and ISPs alike. Innovators and their investors need to know that they won’t be discriminated against and that ISPs cannot create new barriers to innovation by charging access fees.
Third, start-ups are small and don’t have many resources, let alone a legal team. So we need rules that can be enforced through simple, straightforward legal processes, not rules that tilt the playing field in favor of large, established companies that can pay armies of lawyers and expert witnesses and afford long, costly proceedings at the FCC.
Fourth, we need rules that give ISPs flexibility to realize their legitimate goals such as network management, price discrimination, or product differentiation, albeit through means that do not distort competition, harm application innovation, or violate user choice.
Fifth, we need rules that do not overly constrain the evolution of the Internet infrastructure and keep the costs of regulation low.
Such rules exist. The FCC that adopted the Open Internet Rules understood this. Between October 2009 and December 2010, it held multiple public workshops, organized a technical advisory process, and worked through more than 100,000 written comments to understand what those rules should be.
And while the Open Internet rules were not perfect, they were an important step in the right direction. As the D.C. Circuit’s decision and relevant precedent show, it is impossible to adopt the rules we need based on Section 706, if the rules are to be upheld in court. In contrast, if the FCC classifies ISPs as telecommunications service providers under Title II, it is not subject to the same limitations and can effectively protect network neutrality by prohibiting blocking, harmful discrimination, and pay-to-play access fees.