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House Democrats made waves last week by passing the Save the Internet Act, which would nullify the Federal Communications Commission’s Restoring Internet Freedom Order and reinstate the 2015 Open Internet Order as a matter of law. Over at the Notice and Comment blog, Dan Deacon posted some interesting thoughts about the administrative law consequences if this unusual bill were to pass. But with Senate Majority Leader Mitch McConnell stating that the act is dead on arrival in the Senate and with the White House threatening a veto, it is highly unlikely that this bill will become a law.
The saga highlights the continued partisanship that has poisoned the net neutrality debate. It is unlikely that Congress and the White House will enact any meaningful reform before the 2020 election. But if anything happens, it would have to be a bipartisan proposal that bridges the gap between the Open Internet Order’s common carriage regime and the Restoring Internet Freedom Order’s antitrust-informed approach. With that observation in mind, this blog post looks at the three Republican broadband regulation bills currently pending in the House (and their sponsors): HR 1006 (Rep. Greg Walden (R-OR)), HR 1096 (Rep. Bob Latta (R-OH)), and HR 1101 (Rep. Cathy McMorris Rodgers (R-WA)).
All three bills classify broadband internet access service as a Title I information service, which is largely consistent with the FCC’s current and pre-2015 approach. Each incorporates the definition the FCC has used consistently since 2010. The bills also prohibit the blocking of lawful content, applications, services, and devices, subject to reasonable network management practices, and require similar transparency requirements.
Points of distinction
The primary difference among the bills is their treatment of network management practices. The Walden and McMorris Rodgers bills take a categorical approach, prohibiting throttling and paid prioritization per se. The Latta bill substitutes instead a more general prohibition on unjust or unreasonable discrimination in the transmission of broadband traffic. This latter approach is more flexible and readily adaptable to a dynamic broadband environment.
As I have discussed elsewhere, a per se ban on paid prioritization is problematic because there are both good and bad reasons why a network provider may wish to prioritize some traffic over others — most obviously, some apps (such as video) are congestion-sensitive while others (such as web surfing) are less so. So prioritization can help improve the delivery of congestion-sensitive apps without harming other apps. A per se approach prevents broadband providers from offering consumer-friendly prioritization options to edge providers, because of a fear of abuse. The Latta bill’s approach is similar to the original 2010 Open Internet Order’s fixed broadband regulations and allows more room for innovation — although it would be improved if it were amended to clarify that offering prioritization for a fee is not itself unjust or unreasonable, if similar terms were available to similarly situated edge providers. This would bring broadband regulation in line with the nondiscrimination norm that the act traditionally placed on carriers.
The Walden and Latta bills also limit the FCC’s ability to enforce the statute via rulemaking. I imagine this provision is motivated by the notion that in a dynamic market such as broadband regulation, where technology is evolving and the demands that edge providers place on the network are changing, it may be better to proceed on a case-by-case basis via adjudication rather than issue blanket rules that could stifle innovation. This makes sense, although students of administrative law recognize that this may be less of a distinction than one might imagine. Chenery II, a cornerstone of any administrative law syllabus, recognizes that agencies can make and enforce new standards via adjudication or rulemaking. As the Federal Trade Commission has shown, a broadly written adjudicatory decision can have the same effect as a rulemaking proceeding on guiding future behavior — though it is perhaps easier to undo if a changing environment requires modification of the standard.
There are a handful of miscellaneous other distinctions as well. For example, each bill contains an exception for reasonable network management, but they define the term slightly differently. The Latta bill offers the most flexible approach, while the McMorris Rodgers bill’s definition is probably the narrowest of the three. And the Latta bill explicitly prohibits private rights of action and damages, which helps clarify that broadband policy is decided by the FCC, our nation’s experts in communications regulation, rather than by juries in class-action lawsuits challenging carriers’ network management practices.
Overall, my sense is that the Latta bill offers the best blend of regulatory guidance and flexibility, allowing the FCC to punish bad behavior while permitting consumer-friendly innovation to flourish in both the broadband and edge provider markets. But any of the three are preferable to the more restrictive approach endorsed by the Save the Internet Act — and they have the added promise of delivering the ever-elusive broad bipartisan support necessary to achieve a lasting solution to the net neutrality problem.
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