Policy Studies Federal Government Affairs

Codifying Net Neutrality through bipartisan legislation

March 14, 2018

The lingering debate over Net Neutrality in the United States has generated substantial regulatory uncertainty, which ultimately harms American consumers in the form of reduced investment, higher prices, and less innovation among broadband providers and throughout the Internet ecosystem. Without federal legislation, the Federal Communications Commission (FCC), Federal Trade Commission (FTC) and states will continue to wrestle with each other and implement various forms of Net Neutrality, creating an even more fractious and uncertain regulatory environment. For these reasons, it is up to Congress to avoid this outcome by codifying Net Neutrality into law, which will require members of both political parties to agree upon a bipartisan compromise. Fortunately, there are several potential compromises for Congress to consider when crafting bipartisan legislation. This study first identifies the issues and terms of the Net Neutrality debate and then outlines three potential compromise proposals that could resolve it once and for all.

Top Points:

The term Net Neutrality has no precise definition, but the debate is over how to regulate broadband providers’ traffic management and interconnection pricing in order to police unfair discrimination against third-party devices or services.
The United States has experimented with various forms of Net Neutrality over the years, and the FCC, FTC and states will likely continue to experiment with different Net Neutrality frameworks until Congress codifies it into law.
To truly resolve the Net Neutrality debate, members of both political parties will have to agree upon a bipartisan compromise.
There is a lot of middle ground between the 2015 Open Internet Order—which Republicans hated—and the 2017 Restoring Internet Freedom Order—which Democrats hate—so Congress has multiple potential compromises to consider when crafting bipartisan legislation.
One option is to give the FTC more authority and resources: This would provide a level playing field throughout the Internet ecosystem and reduce market distortions, but it would require the FTC to bolster its understanding of telecommunications by hiring more engineers and computer scientists or by collaborating with the FCC on an ongoing basis.
A second option is to modernize Title II of the Communications Act by removing all the outdated provisions that aren’t needed for Net Neutrality: This would provide the FCC with ample authority to regulate broadband, but also strip away the FTC’s authority over broadband providers’ privacy and cybersecurity practices, so these regulatory conflicts would need to be resolved somehow in the drafting process or through ongoing coordination between the two agencies.
A third option is to give the FCC new authority outside of Title II: Giving the FCC new authority in Title I or in a new Title of the Communications Act would allow it to regulate Net Neutrality while the FTC regulates all privacy and cybersecurity practices, which would allow each agency to play to its strengths and may well be the most viable political compromise.
There are no easy answers to the Net Neutrality debate, but, for the sake of the American people, Congress should step in and resolve it sooner rather than later.