Today, the Federal Communications Commission (FCC) voted to begin the process of revisiting whether internet access services should be classified as “information services” or “telecommunications services” as defined by the Telecom Act. From its inception, and throughout Republican and Democratic Administrations, internet access was treated as an information service. It was this light touch approach to regulation that propelled the phenomenal growth of the internet, innovative services for consumers and the widespread deployment of broadband facilities. It was only in 2015, in response to political pressures, that the previous FCC reclassified internet access as a telecom service, abandoning this unquestionably successful policy approach in favor of public utility laws written for monopoly telephone companies in the 1930s.
When the 2015 reclassification Order was adopted, Chairman (then Commissioner) Pai and Commissioner O’Rielly objected vigorously on both legal and policy grounds. Putting that kind of straight jacket on internet providers served no beneficial purpose, addressed no harm and, predictably, suppressed investment. American consumers will be better served by a return to the light touch regulatory regime that garnered bi-partisan support for decades and fostered infrastructure deployment, innovation, freedom and entrepreneurship.
We look forward to engaging in the complex discussions teed up in this proceeding, as the questions raised here are so important to consumers and the economy. But, in the end, significant policy judgments are the province of Congress. Administrative agencies can act only on the authority they are granted to implement Congressional mandates. In 2015, a 3-2 majority of the FCC departed from decades of precedent to reclassify internet access. Now, a split FCC has begun the process of reversing that decision. Perhaps the only path to a clear and durable regulatory framework for internet access is through Congress.