Wheeler's 'third way' on net neutrality

Eight years ago this week, Phil Weiser (now dean of the University of Colorado Law School) and I released "A 'Third Way' on Network Neutrality" in which we argued that that "the current state of the network neutrality debate, like many polarized issues, denies the reasonable concerns articulated by each side and obscures the contours of a sensible solution." We could have written the same statement today, for not only does this remain true, but in the wake of the Stop Online Piracy Act/Protect IP Act controversy, this particular tech policy debate is now even more polarized and ill-informed.

When I first became involved in telecommunications policy in the mid-1990s, the policymaking process looked very different. Telecom policy seemed at times like a sleepy technocratic backwater driven by inside-the-Beltway interests and objective expert advice. Congress regularly passed major telecom reforms on a bipartisan basis (who can forget Tauzin-Dingell?) and the divides were often more sectional than partisan, with some rural and "square state" interests often at odds with urban interests.

Some may be happy to see those days gone, welcoming the sharp scrutiny from the public and the media that current telecom policy issues receive. I, on the other hand, lament their passing. Those deals weren't corrupt — they were legitimate, bipartisan compromises, crafted by those who understood the trade-offs and their implications.

Today, not only is Washington far more partisan and acrimonious, but "grassroots" movements (in this case, so-called "netroots") play a much bigger role. And, unfortunately, telecom policy has been swept up in these partisan politics and circus-like atmosphere. Policy debates veer from one extreme to another with a real risk of losing the ability to find smart, well-reasoned compromises. And the media contributes by all too often failing to demonstrate a full grasp of the technical issues at play. Enter net neutrality.

Despite the furor over net neutrality after President Obama was elected, the 2010 Open Internet rules ultimately adopted by former Federal Communications Commission (FCC) Chairman Julius Genachowski in part mirrored our "Third Way" recommendations: Ensuring transparency in broadband operators' network management, imposing strong rule against blocking of legal content, while still allowing at least some flexibility for reasonable network management.

Last January, the District of Columbia Circuit Court overruled some parts of those rules, and now current FCC Chairman Tom Wheeler finds himself with the difficult job of threading the needle for a reasonable, third-way approach. Wheeler is currently trapped between two bad options: one flawed, the other terrible. The flawed option, pushed by many conservatives, is to have the FCC do nothing. This approach is not as unreasonable as it may seem. There is only one case of actual abuse (the Madison River case), all major network operators have committed to not blocking or degrading traffic, and there is no indication network operators desire discriminatory deals. Moreover, the alarming neutrality violations imagined by those on the left would likely be deterred by the potential PR firestorm and could be stopped by the FTC under current authority.

The left, pushing for the other extreme, argues for the terrible option — old style telephone, Title II regulation. Title II is so obviously a poor framework for Internet regulation that it is alarming to see the FCC treat this as a legitimate possibility.

These two positions obviously cannot both win. But worse, they imperil reasonable compromise. By holding out for no regulation, conservatives risk Wheeler's hand being forced by the netroots and so-called "public interest" groups to embrace Title II. The push for Title II dangerously radicalizes the debate — the claim that only Title II can really preserve net neutrality is not only false, but precludes progress on finding more reasonable solutions. If the left falls on its sword for Title II, it's likely to fail and get only the status quo.

Let's start simply, having some basic rules of the road make sense. The Internet's openness is key to its success as the most powerful platform for innovation and creativity the world has ever seen. If we can implement some appropriately flexible rules to safeguard that success, we should. Furthermore, those companies whose businesses rely on last-mile, consumer-facing networks need assurances that operators won't have them over a barrel. At the same time, operators deserve flexibility in managing their networks and in seeking out fair deals that make consumers and companies seeking to innovate better off. Underpinning all of this is the engineering fact that not all Internet traffic is the same and requiring that it be treated the same inherently discriminates against some kinds of bits (e.g., VOIP applications like Skype and Google Hangout) in favor of others (e.g., email).

Wheeler's proposed approach, based on Section 706 of the Communications Act, is grounded in the middle-way third way that Phil Weiser and I proposed eight years ago. Admittedly, this is freshly tilled jurisdiction for the FCC, and the key will be to see if Section 706 can carry the needed legal weight. But there is much work to be done to find an appropriate balance for everyone's interests, and it is time to get it underway.

Let's go back to the days of bipartisan, tough-minded compromises. Instead of debating over slogans and offering up apocalyptic propaganda about of the end of the Internet, let's start finding solutions the old-fashioned way.

Atkinson is president of the Information Technology and Innovation Foundation.