Yesterday, Chairman Pai announced that he would open a proceeding to revisit the question of whether Congress directed the FCC to regulate the internet using the regulatory framework adopted in 1934 for the monopoly-era telephone networks. To be clear, this proceeding is not about whether the open internet will continue to be protected and preserved. That question has been asked and answered repeatedly and in the affirmative by Democratic and Republican Administrations alike for well over a decade, first with the Powell and Martin Internet Principles, then with the Genachowski Open Internet Order.
And for those with a short memory, it is also worth noting that AT&T supported each of those approaches to protecting an open internet. Indeed, my now-retired boss, Jim Cicconi, testified before Congress in favor of the Genachowski Order, as a Democratic witness no less. Why? Because AT&T has always supported our customers’ right to an open internet – and the right to access the content, applications and devices of their choosing.
We also believed the Genachowski Order, which rejected the heavy-handed regulatory approach that some at that time were advocating, accomplished that goal without stifling the dynamism of the Internet by subjecting it to laws written in a far different era for a far different industry. Indeed, Chairman Genachowski accepted as a foundational fact our “shared allegiance to the Internet as an open platform.” But the Order he crafted rejected a Title II approach in favor of “a strong and sensible, non-ideological framework – one that protects Internet freedom and openness and promotes robust innovation and investment throughout the broadband ecosystem.”
Unfortunately, in the Wheeler era, politics trumped good policy and the Order ultimately adopted by the Wheeler FCC abandoned the careful balance that the Genachowski FCC had struck. Eschewing carefully crafted rules that addressed the very concerns animating the open internet proceeding – blocking, throttling, and paid prioritization – the Wheeler Order instead opted to subject all facets of broadband service to the outdated and ill-fitting framework of Title II, saddling modern broadband infrastructure and investment decisions with an outdated regulatory scheme designed for networks of a bygone age.
Here is the hard truth: any attempt to find authority to regulate Internet access within the contours of the Communications Act as it exists today will be controversial. The Act contains only a single reference to the word “Internet” in a passage that undeniably cautions against regulation. Section 230 states that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” And it is the absence of express net neutrality statutory authority that has prompted Members of Congress time and again to introduce legislation that would give the FCC explicit authority to protect an open internet – an effort that has been supported by Rs and Ds alike. Unfortunately, none of those efforts have yet to be successful.
In the coming weeks and months, the death of the open internet will no doubt be greatly and repeatedly exaggerated. Indeed, such proclamations are already being made, even before the FCC inquiry is officially launched. But the question of this moment is not whether the internet will remain open – it undoubtedly will. The question is how, as a country, we will regulate the Internet ecosystem – including not only ISPs and the broadband infrastructure they deploy, but the tech companies that now dominate the Internet experience.
The question is also whether Congress will commit on a bi-partisan basis to adopt a balanced and durable statutory framework that will enshrine reasonable rules for the digital road with specificity and clarity. That, in the end, is the only way to resolve the open internet debate once and for all.