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A Republican proposal could be our best chance to save net neutrality

Senate Lawmakers Speak To Press After Weekly Policy Luncheons
Sen. John Thune (R-SD) argues that predictable net neutrality rules would be good for everyone.
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When the Federal Communications Commission established strong network neutrality rules in 2015, its leading critic was Ajit Pai, a member of the commission’s Republican minority. Now under Donald Trump, Pai is leading the FCC, and on Wednesday he announced plans to scrap those Obama-era protections.

But critics of network neutrality rules shouldn’t be celebrating too much, because there won’t be a Republican in the White House forever. The next time a Democrat wins the presidency, we can expect the FCC to bring network neutrality regulations right back.

This back and forth won’t please anyone, but what’s worse is that the instability will necessarily undercut the main benefits of either approach to the issue. Because the cases both for and against net neutrality hinge on creating stable expectations.

Sen. John Thune (R-SD) is worried about the prospect of endless partisan conflict over network neutrality. As he put it in a January speech at the the State of the Net conference: “Complex and ambiguous regulations that shift with the political winds aren't in anyone's best interest.” In an email statement on Thursday, a Thune staffer told me that “Sen. Thune remains very keen on working across the aisle on legislation to put permanent net neutrality rules in place that have the force of law.”

As the chair of the Senate Commerce Committee, Thune is one of the most influential figures in Washington on internet regulation. He has been pushing for a legislative compromise since early 2015 when the Obama FCC was finalizing the strong network neutrality protections that are in effect today.

At the time, Democrats had the upper hand and saw little reason to compromise. But now, with a new Republican majority at the FCC, Thune hopes Democrats will reconsider.

If Congress passed bipartisan legislation, it would have the potential to settle the network neutrality debate in a way that a series of FCC decisions never will. But any effort to broker a compromise on the issue is likely to be met with resistance from partisans at both ends of the political spectrum.

Some net neutrality fans want the FCC to have flexibility

Senate Judiciary Committee Hears Testimony From FCC Leaders On Proposed FCC Privacy Rules
Tom Wheeler, the FCC chair during Obama’s second term, makes a point in 2016. The man Trump chose to replace him, Ajit Pai, looks on.
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The concept of net neutrality — all online content should be treated equally — is easy to say, but difficult to translate into precise legal terms.

Everyone agrees that network neutrality prohibits a broadband provider from blocking or slowing down a website or online service based on its content. If an ISP refused to let you connect to a political candidate’s website, for example, that would be a blatant violation of network neutrality.

In 2015, Sen. Thune introduced legislation that he co-authored with his House counterpart Fred Upton (R-MI) that would have codified this basic understanding of network neutrality into the law. The legislation would also have banned paid prioritization, in which a technology or content company pays a broadband provider to carry its traffic faster than the traffic of competitors.

This seemed like a good start toward protecting network neutrality, so back in January I asked John Bergmayer, a net neutrality supporter at the advocacy group Public Knowledge, if it passed muster. He said it was better than some other compromise proposals he’d seen, but he wasn’t ready to sign up.

One of the big sticking points was over how much leeway the FCC would have to adjust network neutrality rules in response to future changes in the marketplace. Back in November, for example, AT&T announced that data consumed by DirecTV Now — a streaming service owned by AT&T’s DirecTV subsidiary — wouldn’t be counted against customers’ data caps.

This kind of unequal billing probably doesn’t run afoul of the rules in Thune’s bill. But Bergmayer and some other network neutrality supporters worry that AT&T’s approach could give its subsidiary an unfair advantage in the marketplace.

Another example: In 2014 Comcast got in a big fight with Netflix about whether Netflix should have to pay Comcast to deliver video streams to Comcast customers. Netflix characterized Comcast’s demand as a violation of network neutrality; Comcast countered that it was an ordinary business dispute. Thune’s legislation doesn’t specifically address the issue.

Many net neutrality supporters like the fact that current law gives the FCC fairly broad authority to update the rules over time to clarify these kinds of controversies. Thune’s 2015 bill would take that discretion away from the FCC. So even if Thune’s bill protects network neutrality in the short run, net neutrality advocates worry that broadband providers would find ways to circumvent the rules and erode network neutrality over time.

Perpetual conflict over net neutrality would be bad for everyone

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These guys won’t be in power forever.
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The problem is that giving the FCC broad discretion to write strong network neutrality rules necessarily means that the FCC also has the option to write very weak network neutrality rules — or perhaps no rules at all. And this kind of uncertainty is problematic no matter which side of the network neutrality debate you’re on.

After all, one of the key arguments in favor of network neutrality regulations is that it offers certainty for online innovators. Suppose you’re an entrepreneur thinking about creating the next Netflix. In a world without network neutrality protections, you might be worried that once the service starts to get traction, major broadband providers would decide it’s a competitive threat and jack up the fees to deliver content to their customers. Anticipating this, people will become less likely to create startups in the first place.

A key argument against network neutrality is also about certainty. Suppose you’re an entrepreneur thinking about creating a new kind of wireless service — one that manages traffic in a way that wasn’t foreseen by the authors of network neutrality rules. In a world with complex network neutrality rules, you might not get an official ruling on whether your service is legal until after you’ve invested millions of dollars creating it. Again, that could discourage investment and entrepreneurship.

Depending on your politics, you might find one of these arguments more compelling than the other. But now we’re in danger of having a system that combines the worst features of a world with network neutrality and a world without it.

Donald Trump’s FCC looks poised to repeal the net neutrality regulations Obama’s FCC passed in 2015. If a Democrat is elected president in 2020, it’s a near certainty that the FCC will reinstate a version of Obama’s rules. Then if a Republican is elected in 2024 or 2028, the FCC is likely to tear those rules down.

Having the rules switch back and forth unpredictably is a disaster for both sides in the net neutrality debate. A legislative compromise can solve this problem. Because passing legislation is a lot harder than changing an FCC rule, a rule passed by Congress with buy-in from both parties would have a much better chance of being permanent.

Any compromise will face grassroots opposition

Activists Protest For Net Neutrality Outside Federal Communications Commission Meeting Photo by Alex Wong/Getty Images

Broadband providers understand all this. They fought hard against Obama’s version of network neutrality, which they viewed as overly burdensome. But they have also consistently signaled a willingness to compromise. Comcast has said for several years that it’s committed to an open internet. Verizon says it’s committed to an open internet too. They’d be willing to live with weaker network neutrality rules that were permanent and predictable if it meant they didn’t have to worry about more burdensome rules coming into force every couple of administrations.

On the other side of the debate, major technology companies have shown some interest in compromise as well. Google has long been one of the strongest supporters of network neutrality. But back in 2010, it cut a deal with Verizon to jointly advocate compromise legislation on network neutrality (it didn’t pass). Constant regulatory warfare isn’t in Silicon Valley’s interest any more than it’s in the interest of major broadband providers.

If this were a less prominent issue, Thune and his counterpart in the House could call together leading industry figures on both sides of the debate and broker a compromise that all the affected industry groups could live with. That’s basically how Congress’s 2011 overhaul of the patent system worked, for example, and it’s how telecommunications policy worked the last time Congress overhauled it in 1996.

But in the past decade, network neutrality has gone from being an issue only policy wonks and industry lobbyists care about to an issue that a lot of mainstream political activists are interested in. A turning point came in 2014, when Obama’s FCC chair, Tom Wheeler, proposed a compromise that would have offered weaker — and less onerous — network neutrality protections than liberal activists were seeking.

Activists portrayed Wheeler’s proposal as an assault on network neutrality. John Oliver did a segment panning the proposal, and it racked up 12 million views on YouTube. Responding to this grassroots pressure, President Obama announced his support for strong network neutrality protections. By the time the FCC formally approved the strong rules in 2015, there were far more liberals engaged on the issue than there had been a couple of years earlier.

That grassroots enthusiasm is still around. And it’s going to complicate any effort to broker a compromise. Because if Congress starts to consider legislation that establishes net neutrality protections but bars the FCC from changing them over time, it’s likely to face a grassroots backlash from both ends of the ideological spectrum.

Conservatives will accuse Republican members of Congress of endorsing unnecessary regulation of the internet at a time when Republican control of the FCC makes that unnecessary. Meanwhile, liberals are likely to take the same approach they took in 2014: painting the compromise proposal as an attack on the concept of network neutrality itself. The result: Everyone in Congress will face grassroots pressure to vote no.

Still, if the alternative is four or even eight years of no network neutrality protections at all, some net neutrality fans might take a deal. More importantly, big telecommunications companies give generously on both sides of the aisle. So there may be some centrist Democrats who are willing to take a deal despite pressure from liberal activists to reject it.