Democrats' latest net neutrality bill is a partisan death sentence for internet innovation

The internet is not crumbling. It is not grinding to a slow trickle. It does not need saving by a government superhero with regulatory super powers.

By Michael Powell. He is a former chairman of the Federal Communications Commission.

"Software engineers use the term “infinite loop” to refer to a piece of code that lacks a functional exit so that it repeats indefinitely. But it’s also a perfect way to describe the worn out, never-ending debate over net neutrality regulation.

The latest partisan effort — the heroically named  Save the Internet Act— won’t bring us any closer to an exit ramp. By a  sponsor's own admission, the act is a “messaging” bill. Can’t we all agree it's time to stop sending political messages and start drafting bipartisan policy that can realistically become law?

The net neutrality infinite loop isn’t caused by any fundamental disagreement over internet openness rules. In fact, virtually all major stakeholders support the basic idea of net neutrality protections to stop interference or manipulation of internet traffic. I first outlined four “internet freedoms” capturing these basic points while serving as the Federal Communications Commission chairman back in 2004, and a strong consensus on the substance has taken shape since.

Where regulators have struggled for nearly 15 years is finding a legal hook on which to hang net neutrality rules because Congress never gave regulators the clear power they needed. Courts several times rejected the FCC’s contorted legal attempts to find that authority.

Four years ago, then-FCC Chairman Tom Wheeler resorted to alchemy to advance net neutrality rules. He reclassified internet providers into  telephone carriers. Why? Because the FCC has vast amounts of authority left over from the Roosevelt era to regulate telephones and, thus, with a little sleight of hand it invested the agency with expansive power to regulate almost anything to do with internet service. In one audacious move, the Federal Communications Commission transformed itself into the Federal Internet Commission. It got the inch of authority it needed to adopt net neutrality rules, but it took a mile of power over the future of the internet.

The problem with this trick is that it did more than shore up the FCC’s power to adopt net neutrality rules. It opened the door to applying a morass of old telephone laws — known as  Title II — to the modern internet without any thought to the consequences. It is unquestionably important to keep the internet open for tech innovation and for consumers, but it is equally critical to the public to keep strong incentives in place for the network to grow and advance robustly — to reach citizens in rural communities, to increase speed and capabilities, and to reduce wait time and handle the cornucopia of home gadgets. 

  

The country needs 5G wireless networks and 10G broadband networks to keep pace with AI, quantum computing, and more and more streaming video. Title II and similar public utility regulation, however, has a well-documented history of impeding investment, stifling innovation and increasing prices. We should not want the internet to suffer the same fate as our potholed roads, decaying electric grid and overburdened airports.

The Wheeler FCC’s controversial move also shattered the strong bipartisan consensus that had formed around net neutrality policy and politicized the issue. This has created the ping-pong syndrome where rules will swing back and forth wildly every time a new administration comes to power — never producing a resolution for consumers and innovators. This uncertainty only chokes rather than nourishes modern communications networks.

Latest bill is a partisan sham, not solution

Sadly, however, instead of trying to fix this mess, the latest effort by Democratic leaders in Congress is not a well-reasoned policy solution but rather a cynical partisan maneuver. 

Let’s be clear. Congress has plenty of authority under the Constitution to protect the open internet without resorting to Title II and the legal gyrations that have tripped up regulators. It can strike a better balance between open internet protections and incentives for continued internet growth. It can better tune the law to a modern infrastructure that differs radically from the phone system. And it can stop the endless court proceedings by shoring up regulatory authority.

The internet is not crumbling. It is not grinding to a slow trickle. It does not need saving by a government superhero with regulatory super powers. It just needs a set of simple rules, backed by clear authority to ensure its open nature remains unchanged. A moderate solution is within reach, if only our leaders would take it."