WASHINGTON D.C. —  Today, the Federal Communications Commission Chairman will vote to seek public comment on the FCC’s legal authority over the Internet. The Notice of Proposed Rulemaking invites comment on reversing the two legal claims that underlay the 2010 and 2015 Open Internet Orders —  Section 706 and Title II — and what that would mean for the FCC’s ability to address net neutrality. The NPRM will also consider alternative approaches. The Commission could issue a final order this fall or winter. If, as expected, the order reverses both previous claims of legal authority, responsibility for policing net neutrality will, absent legislation, return to the Federal Trade Commission, the Department of Justice, state attorneys general, and private plaintiffs.

“Today’s vote isn’t about net neutrality, but the FCC’s legal authority over the Internet,” said Berin Szóka, President of TechFreedom. “Democrats and Republicans have long agreed on the core of net neutrality: ISPs shouldn’t block or throttle traffic, they should provide transparency about their service plans, and anti-competitive conduct should be punished. The real debate is over the FCC’s power. Over the past few years, some activists have conflated the ‘Open Internet’ with ‘Title II’ regulations designed for monopoly telephone and railroad networks. Such broad claims of power enable the FCC to go far beyond net neutrality — such as cracking down on copyright or regulating cybersecurity.”

In an op-ed for WIRED, Szóka called on Congress to pass legislation:

Really, it’s the failure of both parties to resolve relatively minor disagreements about how to police net neutrality that led the FCC to make broad claims of power over the internet.

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Lawmakers should enshrine rules against blocking and throttling, enforced by either the FCC or the FTC, and deny the FCC a blank check over the internet. Until Congress acts, telecom Groundhog Day will keep replaying over and over and over.

“The FCC will no doubt receive a flurry of policy-related comments on today’s proposal, but the real audience for those should be Congress,” concluded Szóka. “The relatively minor differences among Democrats and Republicans on how to police net neutrality concerns can and should be worked out in legislation. Absent legislation, or a clear Supreme Court decision in still-pending litigation, the question of the FCC’s legal authority will simply keep ping-ponging back and forth depending on which party controls the FCC. Consumers and companies alike deserve a policy that protects an open Internet once and for all.”

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We can be reached for comment at media@techfreedom.org. See our other work on net neutrality, including:

  • An explainer on Title II and net neutrality
  • Our statement on our legal challenge to Title II, and why we will ask the Supreme Court to take the case
  • Our podcast interview with FCC Chairman Ajit Pai

About TechFreedom:

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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