On Monday,?? ?? ??? Rep. Greg Walden (R-Ore.) invited a handful of America’s biggest companies to a private meeting to discuss repealing the nation’s net neutrality law, the 2015 Open Internet Order.
Walden, who chairs the powerful House Energy and Commerce Committee, reportedly invited the nation’s four largest internet service providers (AT&T, Charter, Comcast, and Verizon) and four tech companies (Amazon, Facebook, Google, and Netflix) to the meeting, which is set for August 7. This comes after Walden announced a September 7 hearing to which the chief executive officers of the same eight companies were the only invited witnesses.
Anyone who cares about maintaining net neutrality and a free and open internet should find these developments deeply troubling.
A quick refresher: net neutrality is the policy of assuring that every bit traveling over the wires is treated the same by network operators so that users can access the content of their choosing without undue interference. It prevents ISPs like Comcast and AT&T from becoming gatekeepers of the Internet with the power to pick the winners and losers of the online marketplace.
The Federal Communications Commission enshrined the principles of net neutrality into federal rules in 2010, but Verizon quickly sued to overturn those rules and succeeded in 2014. The court held that strong net neutrality rules would only be implemented if the FCC “reclassified” ISPs from Title I to Title II of the Telecommunications Act. The FCC did just that in 2015 under then-Chairman Tom Wheeler. The telecom industry sued once again, but the courts rejected the lawsuit and upheld the new rules in their entirety.
But now the 2015 rules, too, are under threat of being swept away—this time by Congress and the Trump Administration. President Trump’s appointed FCC chairman, Ajit Pai, has initiated a proceeding to repeal the 2015 rules and their Title II legal authority with no apparent replacement regime in sight. And although Rep. Walden is moving forward with his own inquiry, it is difficult to imagine Congress coming together to develop a bipartisan proposal that will give us better net neutrality protections than those we currently have.
This reality is disappointing and disheartening. Technology is evolving every day, and much of this change is enabled or empowered by the Internet. If the United States is to maintain its global leadership in the digital sector, we must ensure a fair and open internet.
Strong net neutrality rules that are in place over time can achieve this by encouraging competition amongst ISPs to develop fast mobile and landline networks at low cost—thereby raising the level of baseline broadband service. This, in turn, can help more startups, small businesses, and individual internet users get online. Further, strong net neutrality rules naturally incentivize ISPs to expand their networks, thus promoting competition and increasing consumer choice.
Congress and the FCC know this reality very well. That is why the Commission created the 2015 rules with bans on paid prioritization, blocking of content, and throttling of traffic. This approach had overwhelming support in a docket of 4 million public comments. No docket in FCC history had ever received so many comments—until this year, when 12 million (and counting) Americans submitted comments in Chairman Pai’s current proceeding to repeal the 2015 rules. This record-shattering engagement further signals the enormous public sentiment favoring strong net neutrality rules.
To what end, then, was Rep. Walden’s hearing called? Walden says he wants to bring an end to the “ping-pong games of regulation and litigation.” But that ping-pong game only exists because the big ISPs insist on endlessly relitigating this settled law. Walden also wants to examine legislation on net neutrality, citing a dangerous and misguided draft bill from 2015. That bill would gut net neutrality and the FCC’s authority to address future problems. It would have been a disaster for the open internet and an unnecessary government intrusion into an online marketplace that is functioning well under current law. It does not need to be resurrected in 2017, and it is not the starting point for negotiation that Walden seems to think it is.
Moreover, Rep. Walden’s negotiating table is incomplete. The nation’s largest ISPs and prominent tech companies are important voices—but they aren’t the only ones with a stake in net neutrality. Inviting only these eight companies to the table reflects a process that, by design, cannot capture the myriad issues reflected in the years of debate. In the course of his solicitations, Walden has completely ignored the small businesses, rural ISPs, startups, investors, consumer advocates, and average Americans that the net neutrality rules were designed to protect. To deny these voices a seat at the table demonstrates a poor understanding of why we need net neutrality in the first place.
Governance of the internet cannot be lay to politics, especially as access to the internet is increasingly seen as a human right. The reality is that net neutrality is settled law. Congress must productively move internet policy forward by finding ways to close the digital divide. Repealing the 2015 net neutrality rules would only take us backwards.
Dipayan Ghosh, Ph.D. is a Fellow with the Public Interest Technology initiative at New America and a scholar at Harvard University. He was a senior advisor on technology policy to the Obama White House, and until recently, worked on public policy issues at Facebook. He is on Twitter@ghoshd7.
Joshua Stager is the policy counsel and government affairs lead at New America’s Open Technology Institute. He is on Twitter@joshuastager.
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