There is a middle ground in the net neutrality debate
© Greg Nash

Like politics, race and religion, net neutrality is an issue to be broached gingerly. Informed or not, everyone has an opinion on how the government should regulate the internet, or whether it should be regulated at all. To some, the world as we know it, will come to an end if net neutrality changes. To others, net neutrality is a solution in search of a problem. In Washington, the net neutrality debate divides along two well-entrenched fault lines, whose twain rarely, if ever, meet. The resolution lies somewhere in between.

Essentially, net neutrality — or the open internet — is the view that internet service providers (ISPs) should treat all data that flows over the internet equally. ISPs are those companies that provide us access to the internet — AT&T, Century Link, Charter, Comcast, and Verizon, among others. Net neutrality means that these providers must not differentiate between the data transmitted by a small business or individual user, for example, from the data transmitted by a big company such as Netflix. Content providers, on the other hand, are those companies like Amazon, Apple, Google, Hulu and Netflix that send movies, music, information, services and other “content” over the internet, using the ISPs. Their content creates some of the heaviest flow of traffic on the internet.

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When the Obama FCC adopted the Open internet order in 2015, it established three core principles of net neutrality: (1) no blocking; (2) no discrimination, and (3) no paid prioritization of internet traffic. With an allowance for “reasonable network management,” the government mandated that ISPs do nothing to disfavor small users, and nothing to favor heavy users, of the internet. The Open internet Order also established the position that the FCC could regulate the internet by virtue of its authority under Title II of the Communications Act. 

Favoring net neutrality

The pro-net neutrality forces are comprised primarily of liberal, anti-corporate, activists, academics, think tanks, and self-proclaimed protectors of the public interest. Most of these organizations have never met a merger they liked and tend to believe that big is inherently and inerrantly bad when it comes to corporations — a bit of an irony since they are bolstered by millions of dollars from the largest tech companies in the world, including leading content providers. These technology Illuminati believe deeply in internet freedom, especially the freedom from investing in the internet framework that their services are carried over. 

Using highly staged street theater, the pro-net neutrality groups have mastered the media along with the lexicon of hyperbole. Seizing the headlines, they have orchestrated demonstrations at the homes of the FCC chairman, and have found a champion in TV comedian John Oliver, whose stinging satire can be laugh-out-loud funny. Basically, net neutrality advocates want the U.S. government to regulate the internet under the 1940s era rules originally designed for landline telephone rates. These Title II rules were interpreted by the Obama administration to provide statutory authority for the government to regulate the internet, classifying it as a telecommunications service, rather than information service. After several rounds of litigation, the United States Court of Appeals for the District of Columbia upheld this view, providing a solid foundation for the pro-net neutrality position.

Upping the ante from the battle of 2014, net neutrality groups recently flooded the internet with death threats and racist vitriol against Ajit Pai, the first Indian-American chairman of the FCC, simply because he has put forth a different point of view. Along with an avalanche of bots and canned email crashing the FCC server, today’s net neutrality campaign is American democracy at its most gut-bucket level. Although coming from the left, it seems to know no bounds and mirrors the nationalistic nastiness of the Trump campaign in full swing. Democrats, sadly, appear to find no paradox in these similarities.

Opposing net neutrality

The anti-net neutrality forces, on the other hand, are ISPs, cable and telephone companies, and a coterie of conservatives, free-market think tanks and libertarians. They are not opposed to the three Open Internet principles, but loathe the thought of governmental regulation of the internet. The problem is that Title II gives the FCC the authority eventually to regulate rates, even though it vows to voluntarily refrain — or forbear — from exercising that authority. The anti-net neutrality forces also say they have invested billions of dollars in the internet backbone and should have the commercial ability to determine how to treat internet traffic over their own networks without the government’s intrusion.

Light touch regulation

Harking back to the Clinton and George W. Bush years, the principle of light touch regulation seems to have worked well for the stability and growth of the internet. Although recently unpopular, this seems to be a commercially reasonable position that encourages more investment in broadband, while attending to consumer demands. And yet, the simple rationality of the argument has been drowned out by the clarion calls to resist any changes to the rules.

But change is on the way. Chairman Pai will launch a notice of proposed rulemaking this week to roll back the 2015 Open Internet Order, classify broadband as an information service and institute light touch regulation. While this may provide cool comfort to the ISPs, it will not be the last word. That will belong to either Congress or the Supreme Court, who must settle net neutrality once and for all. Any change will be lauded or lambasted depending on which side of the divide you fall.

The value of self-regulation

In the interim, ISPs should breach this gap by developing an industry self-regulatory regimen, replete with principles, rules and penalties. The three main net neutrality principles should become the foundation for an all-encompassing code of conduct and set of best practices. These could be universally embraced and enforced through an independent, Net Neutrality Council, which could fall under the umbrella of the Better Business Bureau, I would propose. The council could work with ISPs and content providers alike to establish overarching principles and practical rules for net neutrality management that respect consumer demands, but value commercial realities. If any company runs afoul of the self-regulatory principles, the Net Neutrality Council could refer the matter to either the Federal Trade Commission or the Federal Communications Commission for compliance or enforcement. This type of system has been used successfully by several other industries for decades, and has been embraced by both Democratic and Republican chairmen of the FTC. Self-regulation, done properly, is both efficient and effective.

The devil is in the details, but so is salvation

Both pro and anti-net neutrality advocates have become so accustomed to championing their positions, they have overlooked the prospects for compromise. Judging from the lobbying disclosure forms, money is not an object for either side of this debate. If they can afford ads, lawyers and lobbyists, they can afford to invest in a common sense solution to the net neutrality problem. Through self-regulation, both the Open Internet principles and the Title II dilemmas can be resolved with integrity and dispatch. No matter how the argument is spun, there will be no winners if the fault lines are maintained, so a compromise not only would be prudent, but also would advance the public interest.

Adonis Hoffman (@AdonisHoffman) is chairman of Business in the Public Interest and adjunct professor at Georgetown University. He is the author of Doing Good—the New Rules of Corporate Responsibility, Conscience and Character.


The views expressed by contributors are their own and are not the views of The Hill.