Today, the Federal Communications Commission voted to issue a Notice of Proposed Rulemaking seeking comment on new Net Neutrality rules to replace those struck down by the D.C. Circuit in January. Specifically, the NPRM proposes to reclassify broadband providers as common carriers under Title II of the Communications Act and/or to use the broad power claimed by the Commission under Section 706 of the 1996 Telecommunications Act.
The following statement can be attributed to TechFreedom’s Berin Szoka and Geoffrey Manne:
The FCC is making three mistakes. First, there was no need to rush today’s NPRM, as Commissioners Rosenworcel and Pai noted. Second, the FCC has yet to demonstrate that there is a problem that cannot be adequately addressed through enforcement of contracts and existing consumer protection and antitrust laws. The FCC should have issued a Notice of Inquiry to study the need to change the policy framework governing broadband and, as Commissioner Pai urged today, ordered detailed independent analysis by a diverse array of economists and computer scientists.
But most importantly, the Commission is trying to do what must ultimately be done by Congress: effectively rewrite the 1996 Telecommunications Act, whose siloed approach was based on the assumptions of the pre-Internet era. Under either Section 706 or Title II, the FCC’s power to regulate could extend far beyond ISPs or the “last mile” over which net neutrality rules were supposed to apply. Thus, ironically those pushing for “permissionless innovation” would give the FCC vast powers over the Internet. There is no meaningful way for the Commission to cabin the discretion it has claimed under Section 706. Nor can it simply edit down Title II because forbearance would be a long, unpredictable process. Either way, the resulting regulatory uncertainty would harm broadband investment, discourage broadband competition, and harm innovation across the Internet.
The sooner the FCC calls on Congress to update the Act, the better. A political consensus on this issue is possible — just not at the FCC, where policy questions are inevitably intertwined with the intractable problem of the FCC’s authority in a world that has changed completely since 1996. As potential models for reform, we urge lawmakers to reexamine the joint proposal made by by Google and Verizon in 2010, and the Digital Age Communications Act proposed by a bipartisan group of telecom scholars in 2006.
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