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Legislative thaw on net neutrality

Legislative thaw on net neutrality
© Greg Nash

Legislative windows of opportunity rarely open, where the issues are few and crystallized, where Democrats and Republicans have roughly equal leverage, and where each party has the power to grant the other’s most important priority.

With the Federal Communications Commission’s recent release of its Open Internet Order, which details its decision to reclassify broadband as a public utility Title II telecommunications service, that rare moment has arrived.

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The FCC’s recent decision gives Democrats leverage they have previously lacked to pass legislation giving statutory permanence to strong network neutrality principles. Since the first days of the network neutrality debate a decade ago, Republicans in Congress have consistently and successfully resisted net neutrality legislation. Now, however, Republican leaders of the House and Senate Commerce committees have circulated draft bills offering to Democrats the very net neutrality guarantees Democrats have long sought.

In return, Republicans seek to continue the light-touch regulatory framework that broadband has enjoyed for the past decade, which has spurred American investment and innovation to produce an Internet ecosystem defined by the most capable networks and most innovative content that are the envy of the world. To achieve that goal, however, they’ll need Democratic support to clear that provision through both houses and obtain a presidential signature.

But why, one may ask, would Democrats want to accept such an offer, since the FCC has now reclassified broadband as a telecommunications service, vesting the FCC with the power to apply a broad swath of common carrier rules to the Internet? Under that authority, the FCC can assure network neutrality and have residual power to regulate broadband providers in other ways that today are unforeseen. Why would Democrats want to give that up for a statute that only protects net neutrality?

The answer is both simple and compelling. The FCC’s reclassification decision rests on a bed of sand. It is highly impermanent and could be washed away with the next presidential election. Today’s seemingly firm network neutrality assurances are at serious risk of being lost in the future.

The current administration enjoys a 3-2 Democratic voting majority on the FCC. Yet, in a Republican administration, that majority would flip to the Republicans. Given the highly partisan nature of the net neutrality issue, it’s safe to assume that a top priority for a Republican FCC would be to reverse the Title II decision and re-establish broadband as a lightly regulated information service. Moreover, little assurance exists that a Republican FCC would show any interest in starting a new proceeding to protect net neutrality if a court invalidates the FCC’s recent net neutrality decision, or a Republican FCC on its own once again declares broadband to be a lightly regulated information service.

Early polling indicates we may have another close presidential race in 2016. Assuming, hypothetically, that Republicans have a 50-50 shot at winning the White House, we then face the stark reality of a 50 percent probability — in the absence of adopting net neutrality legislation — that the net neutrality guarantees of the FCC’s Title II decision will be swept away as early as 2017.

The current Republican invitation to craft legislation offers Democrats a unique opportunity to achieve the nearly decade-long quest for net neutrality guarantees protected by statutory permanence.

The Republican legislative draft contains provisions objectionable to Democrats that are not needed either to assure statutory permanence for net neutrality or to maintain broadband as a lightly regulated information service. Republicans should be willing to eliminate these extraneous and unnecessary provisions, in order to reach agreement and meet the priority needs of both political parties.

Based on my over 30 years of experience in Washington, such moments are rare, and there is usually a short period when the leverage both parties hold can be effectively exercised. With the passage of time, leverage is lost and opportunity vanishes. But, perhaps with the beginning of spring will come a net neutrality thaw that at long last will put to rest the most contentious communications policy debate of the 21st century.

Boucher served in the House from 1983 to 2011. He is honorary chairman of the Internet Innovation Alliance and a partner in the Washington office of the law firm Sidley Austin, which has telecommunications companies among its clients.