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We Need A Net Neutrality Law, Not Another FCC Ruling

Today is Net Neutrality Day, and in its honor, we’re re-running an updated version of a story we did in April 2017 that makes a critical point: the FCC is a relatively toothless administrative agency. Like all federal administrative agencies, its jurisdiction and enforcement powers are never quite clear and subject to the whims of whatever political party is in power.

What we need is an actual law that defines net neutrality, a law being much harder to overturn than the rulings of an administrative agency. The problem with that is that most members of Congress are woefully tech unsavvy, and as such, not well equipped to write such a law, and the people who might advise them on it all seem to have a horse in the race.

But that’s a stumbling block, not a permanent obstacle and we were pleased to read in Recode today that Senator John Thune (R-SD) agrees with us on that.

We also explain why the current brouhaha over net neutrality is really about zero rating, what that is and why it matters.

By now you’ve no doubt read countless Facebook posts decrying the end of net neutrality written by erstwhile friends moonlighting as public policy advocates. And while your friends no doubt mean well, odds are high they don’t really understand all the nuances

The problem with enforcing the vague concept known as “net neutrality” e.g., preventing Big Cable from shunting small companies to some theoretical “slow lane” is that there’s no foolproof way to enforce it.

The problem starts with the FCC. The FCC is a government agency whose members are appointed, not elected. As such, it’s never been all that clear where their jurisdiction begins and ends and what they can or can’t do in order to enforce their edicts.

So there’s that.

Then there’s the “how” of net neutrality. What Chairman Wheeler did in 2015 was rule that MVPDs qualify as “common carriers” under Title II of the Telecommunications Act of (wait for it) … 1934. As such, the FCC would have jurisdiction over them and could force them to stop treating some companies less fairly than others. (The actual wording is that common carriers need to act “in the public interest” … whatever that actually means.) Here’s the actual text of the 2015 rules, which also include mobile broadband for the first time. (The Verge provides this more user-friendly summary.)

Now what’s important to remember here is that “less fairly” (or “not in the public interest”) has never been defined in regard to ISPs—no one ever approached the FCC to say they’d been discriminated against in favor of companies willing to pay more money for “fast lanes.”

So there’s never been any kind of determination of what “net neutrality” actually looks like. Because had someone actually complained, the FCC would have had to review the intentions behind Title II of the eighty-three year old Communications Act of 1934 and apply them to the internet era. And whoever lost would likely have sued and sent the issue into the courts, where it likely would have wound up in front of the Supreme Court, which would then have issued a final decision. (The FCC’s 2015 order has indeed been challenged in court by the MVPDs, but the legal issue there turned on whether the FCC could call ISPs “common carriers” under Title II–not whether anyone had actually violated the ruling. The last court to rule on it, the DC Circuit Court, said they could indeed apply Title II to broadband.)

What the cable companies would like the FCC to rely on is Section 706 of the somewhat more current Telecommunications Act of 1996, which gives the FCC the authority to regulate ISPs to “promote competition in the local telecommunications market” and “remove barriers to infrastructure investment.”

This is equally vague but the cable companies lawyers obviously feel that any rulings that come out of Section 706 will be less onerous than those made under the guidance of Title II. Or at least easier to defend against.

It should be noted that the telecom industry is not claiming that they want to start discriminating against companies who can’t pay up. (If nothing else, they are aware of the PR disaster that would quickly become.) Their claim is that the internet is still a vast and uncrowded place, and while they’ll certainly take Netflix’s money to ensure better delivery, companies who don’t pay aren’t going to be at a disadvantage.

Zero ratings, however, are another story.

In midsummer 2017, the real battle about net neutrality focuses on the notion of zero ratings. That refers to the ability of access providers who create and own their own content to distribute that content to their subscribers without the subscribers incurring any sort of data charges. So that a Verizon subscriber who is watching Verizon’s own Go90 service will not incur any data charges while a Sprint subscriber who is watching it would. That’s a very sticky area in that it raises all sorts of issues about whether service providers (publishers) should be able to own content creators (producers).

But make no mistake, this is the real crux of the net neutrality issue and it’s why companies like Google and Facebook, who have no significant distribution channels are so in favor of the concept of net neutrality with a ban on zero rating (e.g., Title II), and why the MVPDs, many of who do own their own content, want a form of net neutrality that allows for zero rating (e.g., Section 706).

Why It Matters

Given all the issues around the FCC, Title II versus Section 706, zero rating and the like, what we really need is for Congress to actually pass a law.

Why?

Because as we’ve seen from Chairman Pai’s recent net neutrality rollback, the regulations of an administrative agency like the FCC are easily overturned depending on which party is currently in power.

We need something more permanent, something that ensures that the internet stays free and fair and open, something that doesn’t rely on the vagaries of administrative agencies and legal interpretations of Depression-era legislation; something with real penalties for anyone who violates it.

We need a law.

The problem, of course, is that few people in the Federal government actually understand how the internet works, and the people who could explain it to them all work for the industry they’re trying to regulate.

In other words, while the problem is far from insurmountable, don’t hold your breath.

What You Need To Do About It

Share this article so that your friends actually understand the real issues around net neutrality. And try and get your Senators and Representatives to pass an actual net neutrality law.