As Feb. 26 approaches — when the Federal Communications Commission (FCC) is set to unveil its final net neutrality rules — the arguments against enacting strong, enforceable rules grounded in Title II authority continue to fall. A few weeks ago, in a letter to the FCC, Sprint jettisoned fears that reclassification will chill wireless Internet service provider (ISP) investment. Google made similar assurances this week about its own fiber networks, which will expand to four new cities in the coming months. Meanwhile, a high-ranking State Department official in charge of coordinating U.S. Internet governance strategy laid another bogus claim to rest last week: that classifying broadband as a telecommunications service would somehow undermine the U.S. strategy abroad and open the door to a U.N. takeover of the Internet led by authoritarian governments like China and Russia.
For months, net neutrality opponents have been trying to spin reclassification as a threat to U.S. Internet governance strategy. Just last week, Larry Downes argued in The Washington Post that "transforming the Internet into a public utility ... would seriously threaten U.S. credibility in global Internet governance." His words are familiar by now, echoing arguments that have been advanced by the big ISPs and other proponents of weak, unenforceable net neutrality rules for years. In its initial open Internet filing last summer, for example, Comcast suggested that "imposing common-carrier regulation on broadband services could undermine the United States' resistance to greater oversight of the Internet by the UN's International Telecommunication Union." Similar claims have appeared in op-eds and blog posts throughout the fall.
Sepulveda would know. As a deputy assistant secretary and coordinator of the State Department's information and communications policies, he is one of the U.S. government's highest-ranking officials working on these issues, and he most recently led the U.S. delegation to the International Telecommunication Union's (ITU) quadrennial plenipotentiary conference. At the three-week summit in Busan, South Korea, Sepulveda's team successfully steered the ITU negotiations away from the most contentious Internet policy issues to a relatively agreeable end for all parties. (Full disclosure: I served as an adviser to the U.S. delegation on Internet policy-related issues at the plenipotentiary conference.) Amid fierce debates about whether to make significant changes to IP routing or if a global cybersecurity treaty is necessary, what tech policy issue hardly ever came up? You guessed it: the U.S. debate over whether to reclassify broadband as a telecommunications service to implement strong net neutrality rules. And lest we not forget that in the middle of the conference, rumors about the FCC's "hybrid" reclassification approach — which could have actually had real ramifications that affected the international peering and interconnection system — were leaked to the press. The strategies of foreign governments angling for a greater intergovernmental role in global Internet policymaking do not turn on the source of legal authority that the FCC relies upon in the net neutrality rulemaking.
We've been saying similar things for months. The global interest in the U.S. net neutrality debate has little to do with fear that reclassification of broadband as a telecommunications service will enable a U.N. takeover of the Internet or make it easier for China and Russia to censor and control online content. Rather, other countries are watching because the precedent we set here could influence whether and how foreign governments choose to protect net neutrality at home. They want to know: Will the United States continue to be a leader in protecting a fundamental piece of the open Internet — the right of users to freely access the content of their choosing online — or not? And they understand that the word "telecommunications" has a specific legal meaning in the context of the U.S. net neutrality debate. Reclassification does not amount to a blank check for foreign governments hoping to impose international regulations on the Internet, which the United States government (along with advocates of a multi-stakeholder model of Internet governance) will continue to defend against long after the FCC issues final rules.
What's more, new analysis suggests that if the U.S. fails to implement strong net neutrality rules that protect against paid prioritization, it could actually violate our international human rights and trade obligations. In December, two law professors from George Washington University wrote a letter to the FCC warning that "anything less than an outright ban on paid prioritization ... exposes the United States to complaints at the United Nations and the World Trade Organization." Their argument breaks down into two key components: first, that weak net neutrality rules would violate American international trade commitments to permit foreign companies access and interconnection to the U.S. telecommunications services on non-discriminatory terms, and second, that slow lanes and fast lanes are inconsistent with international free speech obligations. They suggest that violations could open the door to legal action against the U.S. by World Trade Organization members from Latin America (and elsewhere) and that they could potentially hinder trade with Europe as well.
In the end, it's clear that the net net neutrality debate has both a domestic and an international political dimension — but it's important that we make sure to focus on the real issues at stake, rather than getting distracted by misleading claims about the consequences of the FCC's decision. As Ambassador Sepulveda rightly concludes, "The fight for network neutrality, like the fight for an open and free internet, is a clarion call for the world's [I]nternet users and content creators to defend what has made the [I]nternet one of the world's greatest enablers of global social and economic progress."
Kehl is a policy analyst at the New America Foundation's Open Technology Institute.