This morning, Chairman Walden announced his intent for his Committee to hold a hearing on net neutrality in September, inviting companies from across the internet ecosystem to help craft a sustainable legislative solution.  Chairman Walden observed rightly that almost everyone is in agreement about fundamental open internet principles to prevent anti-competitive behavior such as throttling and blocking, and that we must begin discussing how best to codify these principles into lasting, permanent legislation.

Chairman Walden’s announcement comes in the wake of the recent net neutrality “Day of Action,” as well as last week’s deadline for filing initial comments at the FCC, and demonstrates that momentum appears to be building for a legislative solution to put sensible open internet rules on solid ground. Even some Democrats, like Senator Blumenthal and Representatives Joe Crowley and  Mike Quigley, Derek Kilmer and Dutch Ruppersberger, recognize that legislation is the best path forward for a permanent solution.

The media has also begun to recognize that legislation may be the best course. The New York Times, Wired, and Vox have all recently published articles exploring the benefits of legislation.  And, now, we have tech leaders, like Mark Zuckerberg and the Internet Association, indicating a willingness to support a legislative solution. Reddit Co-Founder Alexis Ohanian also recently acknowledged the likelihood of legislative action “because all of our lawmakers in the House and Senate are going to realize, if they don’t already, that every one of their constituents wants net neutrality.”

The arguments for legislation are clear and could not be much stronger. This issue has been a political football for more than a decade. It is the job of Congress, not expert agencies, to resolve this kind of a fundamental question regarding the appropriate policy for regulation of the internet. Relying on administrative agencies to decide issues that are essentially political undermines the entire justification for agency decision making.

It is also likely that some people are beginning to realize that this game of ping pong on net neutrality will continue unless and until we find a permanent legislative solution. In rejecting requests for rehearing of the decision that upheld those rules, DC Circuit Judges Srinivasan and Tatel (the same judges who heard the appeal) made plain their view that the FCC has discretion to decide whether to classify ISPs as information service providers or as telecom providers. The FCC appears free to oscillate back and forth between these two fundamentally different regulatory regimes, based only on which party happens to be in the majority. While being trapped in an endless loop of controversy over net neutrality may be in the interest of those who fundraise off of it, it is poor public policy that threatens investment by service providers and denies  consumers the tremendous benefits that stem from such investment.

While passing legislation poses its own challenges, perhaps with next month’s solar eclipse we are getting a sign that our nation’s legislators, advocates and business leaders can also align along with the sun and the moon and the earth.  If so, we can once and for all have a permanent, lasting solution that protects internet freedom, preserves the internet’s fundamental nature of openness, and promotes continued innovation for the benefit of consumers. I remain hopeful that we will continue to see growing support for a legislative solution.

 

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