Conservative Precedent
Bipartisan History

The FCC and Future Forward Internet Policy

By Chip Pickering

The release of the Federal Communications Commission Open Internet Order today confirms what defenders of an open Internet have been advocating — consumers should get what they pay for.

By building off the sustainable rules set forth in the 1996 Telecom Act, the Commission’s Order continues to follow the light touch approach that has unleashed innovation, investment and job growth.

The Commission has made it clear that interconnection practices cannot be used to harm an Open Internet — which is appropriate because interconnection is the first amendment for the open Internet.

Now, since the FCC approved its Open Internet Order at the February Open Meeting, there has been a lot of Monday morning quarterbacking.

Out of the gate, opponents of strong open Internet protections floated the old “market scare” trick, suggesting big telecom stocks would drop in value. That did not happen and in fact their stocks increased. Now the same crowd would have you believe that the Commission has overstepped its bounds, and arbitrarily made these decisions without any sort of precedent. But those claims couldn’t be further from the truth.

There is a long history of bipartisan support for an Open Internet. It was a Republican-led FCC that originally established the principle that consumers should be able to access the lawful Internet content, applications and services of their choice. In 2005, the FCC, under Republican Chairman Kevin Martin, adopted and released the original Internet Policy Statement. At that time, the Commission expressed the belief that it could use its ancillary authority under Title I of the Communications Act to enforce the Internet Policy Statement and the principles articulated therein.

Remarks before the Ford Foundation on bipartisan history of open Internet.

The Commission’s Internet Policy Statement was supported by then President George W. Bush, who in 2006 issued a Statement of Administration Policy that expressed the Administration’s belief that the FCC had sufficient authority to address potential abuses by Internet access service providers.

Comcast subsequently appealed the Commission’s issuance of a decision finding that it had violated the Policy Statement when it interfered with BitTorrent traffic. The Court of Appeals vacated the decision on the grounds that Title I did not give the Commission authority to assert jurisdiction over network management practices. In response to that decision, the Commission adopted Open Internet rules that most ISPs supported using its Title I and Section 706 authority. Verizon’s appeal of that Order resulted in the Court vacating the Commission’s no-blocking and nondiscrimination rules in January 2014. Although the Court agreed with the Commission’s assessment that the rules were necessary to protect consumers, it determined that the Commission’s classification of broadband Internet service providers as information service providers exempted them from the common carrier obligations that the no-blocking and nondiscrimination rules imposed.

Because of the court rulings, today’s Commission had no choice but to reclassify Internet access service as a Title II service, so that it has clear and explicit authority to prohibit abusive ISP practices such as blocking, discrimination, throttling and paid prioritization, and be able to quickly address consumer complaints and take enforcement action as necessary. At the same time, the Commission’s decision to forbear from 27 provisions of the statute and more than 700 regulations that are not relevant to modern broadband services will ensure that broadband providers are not subject to onerous “utility style” regulation that the naysayers claim will burden providers and cause costs to rise. The Commission’s Open Internet decision takes a prudent approach that both addresses the court-determined shortcomings of the previous Internet rules and continues to protect consumers’ access to the Internet content, applications and services of their choice. A similar “Title II light” regulatory approach has been proven effective in the wireless market.

ISPs — including several of COMPTEL’s members — have stated that the decision will not impact their investment decisions. This means more competition, which will benefit the many small businesses and consumers that rely upon the Internet every day.

The Commission’s decision is consistent with the comments it received from millions of consumers — regardless of political affiliation.

In its Open Internet Order, the FCC made all the right moves to ensure that consumers, start-ups and companies of all sizes can continue to use the Internet to communicate, do business and innovate without fear of discrimination, blocking or having to pay exorbitant charges for specialized treatment.

The FCC made the only play it could, and by adopting common sense consumer protection measures, it has promoted the promise of investment, innovation and the growth of the Internet ecosystem for future generations.

Chip Pickering is the CEO of COMPTEL and a former Republican Member of Congress from Mississippi. COMPTEL is the leading industry association advocating for competitive networks and competitive communications policy.

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