WASHINGTON D.C. — Rep. Marsha Blackburn (R-TN) today introduced legislation that would codify net neutrality rules in statute. Her “Open Internet Preservation Act” is modeled on the discussion draft of legislation introduced nearly three years ago by Sen. John Thune (R-SD) and Rep. Fred Upton (R-MI), Chairmen of the Senate Commerce and House Energy & Commerce Committees, respectively. Blackburn chairs the latter’s Subcommittee on Communications and Technology.

“Legislation has always been the only way to end the net neutrality fight,” said Berin Szóka. “Beneath the legal fight over the FCC’s authority to regulate the Internet, there’s always been agreement on the core of net neutrality, starting with Chairman Powell’s ‘Four Freedoms’ in 2004 and Chairman Martin’s ‘Open Internet Policy Statement’ in 2005. All that’s been lacking is the political will to hash out relatively small policy differences on the margins. Congressional Republicans tried to jumpstart that process three years ago, but Democrats refused even to negotiate, because an activist movement has largely succeeded in redefining ‘net neutrality’ to mean heavy-handed, Depression-era public utility regulation. It’s now been almost seven years since Democrats proposed any legislative language of their own. If they truly care about net neutrality, they need to stop playing politics and start engaging on substance.”

The Blackburn bill would:

  • Codify the 2015 Open Internet Order’s no-blocking and no-throttling rules, and definition of reasonable network management;
  • Leave in place the transparency rule reissued by the FCC last week, which was first issued in 2010; and
  • Bar the FCC from claiming broad powers to regulate the Internet under Title II or Section 706.

“Blackburn’s bill makes one huge concession out of the gate: keeping net neutrality enforcement at the FCC,” explained Szóka. “We’ve long said that the FCC shouldn’t be in the Internet regulation business. There’s no reason the FTC couldn’t be the agency tasked with enforcing bright-line net neutrality rules. We hope that’s where this issue ultimately winds up, but focusing on the FCC to start will help to keep legislation from turning into a fight over imposing ‘neutrality’ regulations on other Internet services, as leading Democrats and Republicans have proposed.” Szóka warned against “high-tech titans turning their political fire on each other” in a 2009 piece entitled “Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction.”

“Unfortunately, the Blackburn bill won’t completely stop the FCC from regulating the Internet beyond net neutrality,” said Szóka. “The Obama-era FCC promised not to use the full weight of Title II, but every telecom lawyer knows that won’t stop a future chairman from imposing full-blown common carriage regulation on the Internet. That, not the core net neutrality rules, is why broadband investment has dipped since the 2015 Order. Blackburn’s bill fixes the biggest problem: barring the FCC from classifying broadband service under Title II. But that won’t stop the FCC from imposing Title II status on other Internet services. The FCC opened that door by reclassifying mobile broadband under Title II, which effectively erased the line between the telephone network and edge services. The VoIP entrepreneurs who joined TechFreedom in suing to block the 2015 Order are at risk unless Congress protects them by protecting the entire Internet from Title II. The Blackburn bill also fails to stop the FCC from using Section 706 — which, if it were a grant of authority, it would apply to all communications services, not just broadband. Legislation must finally stop the FCC’s ongoing power grab.”

Blackburn’s bill does not address the issue of paid prioritization, nor does it include a “general conduct” standard. Thus, these and other issues not addressed by the no-blocking, no-throttling and transparency rules (e.g., zero rating and interconnection) would be policed by the Federal Trade Commission, Department of Justice, state attorneys general and private plaintiffs under existing competition and consumer protection laws.

“Congress needs to be very careful in legislating any rule on paid prioritization,” concluded Szóka. “First, even under Title II, the D.C. Circuit said the FCC couldn’t stop an ISP from ‘filtering of content into fast (and slow) lanes based on the ISP’s commercial interests,’ provided it was upfront about doing so. Any legislative compromise will turn on this thorny issue, but it’s not surprising that Blackburn wanted to start with a clean, simple bill. A flat ban has always been unwise: ‘Prioritization’ is essentially what content delivery networks do, and without them, the Internet could never handle the video services we all enjoy. Prioritization is also what will make 5G services so revolutionary and so beneficial. These could all easily be swept into any prioritization rule. Of course, prioritization can be harmful and anti-competitive. Antitrust laws already protect consumers, but if Congress wants to write a more specific rule, it should consider the compromise negotiated by Google and Verizon in 2010: set a presumption against prioritization but allow that presumption to be rebutted if the practice can be shown not to cause ‘meaningful harm to competition or to users.’”

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Szoka is available for comment at media@techfreedom.org. Find or share this release on our website. For more information on the issue, take a look at some of our recent work:

  • Only Congress, not the FCC can fix net neutrality, Szóka’s op-ed in WIRED
  • FCC Commissioner Brendan Carr interview on Tech Policy Podcast
  • FCC Chairman Ajit Pai interview on the Tech Policy Podcast
  • Pai Brings Unprecedented Transparency to Open Internet Proceeding, Graham Owens’ blog post
  • How net-neutrality advocates would let Trump control the Internet, Szóka’s op-ed in the Washington Post

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