There are many problems with the public conversation surrounding the Federal Communications Commission's (FCC) net neutrality rule-making: The public discourse struggles to rise above simple catch-phrases, popular antipathy against broadband providers clouds good decision-making and the increasing politicization of tech issues drives policy-by-ideology over rigorous analysis of available trade-offs. But one problem stands out among the rest — we aren't actually arguing about net neutrality. Instead of fiddling with a variety of jurisdictional hooks, none of which are quite right for the job, the FCC should take a step back and allow this problem to be solved the right way — through legislation.
The past eight months have not been helpful in this endeavor. Indeed, they have been a full-blown circus of ill-informed protesters and lamentable swift-boating of the FCC chairman (you probably met him as "Tom Wheeler, former cable lobbyist," but may not know he represented the then-nascent cable industry from 1976 to 1984 in fights with broadcasters, and has never worked for an incumbent). This circus drove nearly 4 million comments on the proposed rules, turning what was a great opportunity to give the FCC smart, effective tools to protect the open Internet into nothing short of a political football. Furthermore, President Obama's remarks, advocating for classification of broadband as a Title II telecommunications service, represent a strong punt toward a morass of additional rule-makings and legal battles.
Why, you may ask, if there is general agreement on net neutrality, are we heading for a quagmire? The reason is simple: everything in Title II besides net neutrality. No one, except perhaps the most zealous net neutrality advocates, would object to Title II on the narrow grounds of how it would govern net neutrality discrimination. Title II simply prohibits "unjust or unreasonable" discrimination. Similar to Wheeler's proposal based on section 706 of the Communications Act, Title II would allow many types of discrimination, most importantly for real-time applications that require prioritization. That's right – Title II does not ban discrimination on the Internet. It would simply require that any prioritization deals offered by Internet service providers be made available to other similar companies on similar terms.
Which raises a second question: Why are so many net neutrality advocates pushing for Title II if it can't ban discrimination? The answer is the same: everything in Title II besides net neutrality. Open access networks have long been the end-game goal for organizations on the far left. For example, in 2009, Harold Feld, now with Public Knowledge, described net neutrality regulations as "a second-best option" to open access. On a recent episode of C-SPAN's "The Communicators," Tim Wu was remarkably forthcoming, stating that Title II provides an "easy route" to rate regulation and that the push for Title II "has a lot to do, less with this set of rules, more about the long picture of regulation over the long run." In its latest iteration, net neutrality has been co-opted into a stalking horse for a far broader shift in telecom policy — a shift backwards that is simply not warranted on the facts and is not being transparently debated.
I don't doubt that most of the 3.7 million commenters have an honest belief that Title II, common carrier regulations are necessary to ban all forms of discrimination. My colleagues and I have written extensively on why a blanket ban on prioritization would be a terrible policy mistake. But if zero discrimination is what you want, Title II will not work — you are going to have to go through Congress. On the other hand, if you believe, like I do, that some forms of prioritization will be necessary to enable better functioning of innovative real-time services, Wheeler's original proposal, following the clear guidelines of January's Verizon decision, will provide appropriate oversight.
Whether you agree or disagree with the president's endorsement of Title II, there is no arguing that it introduced significant delay and put Wheeler in a tight corner. Classifying broadband as a Title II telecommunication service would be a complex, contentious process facing steep legal challenge. If the FCC goes forward with Title II, it will have to ask a series of more difficult questions. For example, beyond supporting the dubious assertion that Title II is necessary for effective net neutrality regulations, the FCC would need to show that broadband providers are actually functioning as common carriers (not just that it would be nice if they were). A further notice of proposed rule-making will be absolutely necessary if the FCC has any dream of having its rules stick. Welcome to round two of the circus.
All this would play out while there are real ongoing policy issues. The IP transition, the incentive auction, transitioning our subsidy programs from phones to broadband — these are the policy issues the FCC should be giving its full attention. The FCC would be wise to stick to its section 706 guns and move on to bigger fish.
Let's face it — the ultimate solution is going to be legislation, legislation that either addresses net neutrality directly or, at the very least, clarifies the scope of the FCC's jurisdiction. Let's not waste another year trying to fit a square peg in a round hole. The FCC should take a time out on net neutrality, work on the technical issues that demand its expertise and allow an update to the Communications Act to resolve this issue once and for all.
Atkinson is president of the Information Technology and Innovation Foundation.