AAF’s Jeff Westling recently produced a refresher on the policy issues surrounding net neutrality, cleverly entitled “Net Neutrality Refresher.” As he notes, “Generally speaking, ‘net neutrality’ is the policy that internet users should be free to access the content and services of their choosing, and that traffic-management or interconnection practices that discriminate unfairly among edge services, such as tech companies, should be prohibited.” Even more important, he reminds us that there is actually very little disagreement over the desirability of adhering to the net neutrality objective in internet policy.

Instead, the disagreement has focused on the broadband regulatory framework put in place. Title I of the Communications Act of 1934 covers “so-called information services, or more practically, services outside of the core network that offer ‘the capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.’ Title II covers telecommunications services, which are those services that allow ‘the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.’”

Broadband has largely been regulated under Title I, with the exception of the Obama-era re-classification in 2015 (subsequently reversed). There is good reason to stick with Title I, as Title II regulation was designed for monopoly telephone services, and accordingly comes with provisions that prevent charging “unjust” prices and gives the Federal Communications Commission (FCC) the ability to regulate rates. Rate regulation makes no sense in the highly competitive market for broadband, and its imposition would endanger the quality of competition, broadband investment, and internet innovation.

The FCC may choose to move to a Title II classification of broadband this year (with or without rate regulation), but Westling points out that this will not really solve anything. “The reclassification issue stems from inaction by Congress. The last major change to telecommunications law came in 1996, and little was said on the topic of broadband internet, which was in its infancy at the time. Neither Title I nor Title II perfectly fit broadband, and as a result, regulators must attempt to shoehorn the service into a classification that could come with significant harms. Further, the lack of clear congressional direction has led to uncertainty from the courts, especially regarding how far the FCC should go under a Title I approach without treating [internet service providers] as a common carrier. Congress can step in to resolve this issue.”

Congress stepping up to solve an important policy issue (in a bipartisan fashion). Wouldn’t that be nice?