Myriad Reasons Why No Need for New Net Neutrality Rules

Now that Democrats have a 3-2 majority on the Federal Communications Commission (FCC) with the confirmation of Anna Gomez to the panel by Congress earlier this month, the commission will likely look to push for the reimplementation of Title II regulations on internet service providers.

These regulations, popularly referenced as “net neutrality” by progressives, reclassified broadband as a Title II communications service, effectively a public utility, under former FCC Chairman Tom Wheeler in 2015. The rules were aimed at preventing providers from blocking and throttling traffic, but many saw them as a step towards price controls down the road. Former FCC Chairman Ajit Pai quickly acted to eliminate the rules after his appointment by President Trump in 2017. But after another flip-flop in the Oval Office back to the left, Biden-appointed Chairwoman Jessica Rosenworcel is expected to face enormous pressure to reinstate the rules.

The Taxpayers Protection Alliance (TPA) has written extensively about why Title II rules are not needed and how even the prospect of such regulations, in fact, harmed broadband growth. For example:

• TPA conducted an investigation to see if widescale blocking or throttling by internet providers had occurred in the year following the repeal of Title II rules by sending a Freedom of Information Act request to the FCC for complaints about those issues. Nearly every complaint received by the FCC during that period could be explained as standard network issues rather than malicious intent by the providers.
• In an age of increased competition, it is illogical to think that providers would want to upset their customers by throttling or blocking content when those customers can, in many cases, switch to another provider. This is especially true as satellite and wireless internet providers are offering speeds that rival traditional cable and fiber connections. In any case, if such widespread issues of that nature had occurred in the past six years, there would have been a large outcry from the left, who framed the end of net neutrality as the end of the internet itself.
• Reinstating increased regulations on providers would likely lead to decreased investment again. A March 2017 study by the Phoenix Center found that broadband infrastructure spending dropped by as much as $200 billion between 2011 and 2015 when the Obama administration pushed the FCC to adopt the new rules and internet service providers hedged their bets.
• A recent U.S. Supreme Court case could throw into question whether the FCC can actually reclassify the internet as a Title II communications service unless Congress grants the commission to do so. In West Virginia v. EPA, SCOTUS found that Congress did not explicitly give the Environmental Protection Agency the authority to regulate greenhouse gas emissions in virtually any industry. Without “clear congressional authorization,” the EPS lacks authority to implement the Clean Power Plan under the Clean Air Act, the Court ruled. This new doctrine is known as the “Major Questions” doctrine and almost certainly applies to reclassification of an entire industry as critical to the economy as internet service.
• Because the FCC has long used Title I of the Communications Act of 1934 to regulate broadband, a statute that primarily applied to telephone service (and a law implemented decades before Al Gore invented the internet), it throws into question whether the commission has the authority to reclassify broadband under Title II. Congress should give the FCC explicit authority if it wants to make that change again.

Johnny Kampis is director of telecom policy for the Taxpayers Protection Alliance