by Harold Furchtgott-Roth and Kirk R. Arner
On the campaign trail, the Biden campaign voiced its support for network neutrality—“net neutrality” for short. The topic has resurfaced in recent weeks and months thanks to a few key events. These include the appointment of a new acting FCC chairwoman, the DOJ dropping a lawsuit against the state of California, and Biden’s choice of Tim Wu, the so-called “father of net neutrality,” for a National Economic Council role.
How exactly will the Biden administration act on the issue of net neutrality? How will these decisions affect AT&T, Verizon, T-Mobile, Comcast, Charter, and countless other internet service providers, big and small, across the country, which will assumedly face new regulations? And how will they affect average Americans’ access to the Internet?
To begin to answer these questions, we must first address three more foundational questions concerning net neutrality.
#1: What exactly is net neutrality?
This may be the hardest question of all. Few communications law issues evoke as much passion as net neutrality. The issue became an object of infatuation for HBO comedian John Oliver in 2014, whose viral segment brought such attention to the issue that it seemingly caused the FCC’s website to crash. When the FCC reversed course in 2017, millions more comments were submitted, while then-Chairman Pai and his family became the target of death threats and racist slurs. The political temperature of the moment perhaps reached its boiling point when, during the FCC’s open meeting to reverse the old net neutrality rules, a bomb threat temporarily paused the proceedings.
Yet for all the fervor around net neutrality, there is little common understanding of the subject. Ask most Americans if they are in favor of net neutrality, and they are likely to say “yes.” Who wouldn’t be in favor of something being neutral—let alone something as important as the Internet?
Ask the same people what net neutrality actually means, and they are likely to give puzzled looks and a wide array of confused answers. That’s not surprising, as net neutrality is a puzzle—and an everchanging one at that. Net neutrality meant one set of principles 17 years ago, a different set of principles 6 years ago, and perhaps a different set of principles now.
Today, net neutrality likely means no ISP blocking of websites. But it likely does not mean no blocked content. Just ask any of the countless individuals whose access to Facebook, Twitter, and other social media sites has been blocked in recent months for failing to comport with “community standards,” or because their speech was deemed dangerous by opaque truth boards. Under this framework of net neutrality, it’s perfectly alright for a website to block speakers. But an ISP dare not block a website.
#2: If it acts, how would the FCC approach net neutrality in 2021?
This is not an easy question to answer either. The Commission spent much of its time from 2008 to 2015 attempting to write net neutrality rules that could pass judicial muster. Its first two efforts failed, and only in 2015 did its efforts finally survive court review. Of course, those rules were short-lived, as a new FCC swiftly reversed them just two years later.
The Commission might reinstate the 2015 rules based on their framework of authority under Title II of the 1934 Communications Act. At first glance, that appears to be the simplest approach, as at least one court has upheld those rules. But the FCC is not bound to any specific set of principles here, as net neutrality is not a statutory concept, much less a defined term. The Commission may, and will, set any standards it so chooses.
Perhaps the greatest challenge with the Title II common carrier approach is that, by statute, common carriers are subject to a great many obligations that make little sense for ISPs. This is unsurprising, as Title II was written in 1934 to regulate Ma Bell’s landline telephone service. Should, for example, ISPs be subject to rate regulation? Should they contribute to universal service? Should they be subject to leasing parts of their networks to other carriers?
In 2015, the Commission chose to “forbear” in advance from applying these and other punishing common carrier conditions, but all of the nuances of a forbearance approach have not been fully tested. The FCC might be required to enforce Title II in full, without forbearance, by a future court skeptical of the lawfulness of this approach. And even if forbearance is deemed lawful, it’s certainly not a guarantee that it will remain in effect in perpetuity. At its best, forbearance is little more than a gratuity conditioned on the continued goodwill of a rotating panel of five unelected federal appointees.
#3: Is there a middle path for net neutrality?
For the past few years, some of the largest ISPs have asked Congress and the FCC to adopt a middle path: enact the regulatory substance of the 2015 net neutrality rules, without any of the statutory baggage of Title II common carrier status. Large ISPs understandably are not happy with everchanging regulations that focus public attention and ire, irrationally, against them. Thus far, there has been little interest in either Congress or the FCC for such a net neutrality-lite approach.
That may change when the FCC has a fifth commissioner in place, which will likely occur later this year. When this happens, there will be some pressure on Republican commissioners to try to negotiate a middle path with the Democratic majority. And such a path would be attractive to Democratic commissioners if they prefer a unanimous vote, rather than, yet again, a purely party-line one.
The Commission may write net neutrality rules, with or without a middle path, on its own. But a court one day may ask for the statutory foundation for any form of net neutrality. When this day comes, the Commission will have little statutory defense.
If net neutrality is so important to Americans, Congress should write a law defining it and telling the Commission exactly what to do on the issue. But Congress hasn’t done that yet. Until it does, the FCC is left with a fool’s errand: writing rules outside a statute.
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Harold Furchtgott-Roth is a senior fellow at the Hudson Institute. Kirk R. Arner is a legal fellow at the Hudson Institute.
