Real net neutrality is rooted in Title II
Two years ago this week, the FCC adopted net neutrality rules that protect an open and unfettered Internet. Net neutrality is the principle that the big media companies that provide internet access should not be able to pick winners and losers.
Most importantly, after two previous attempts to enforce net neutrality failed in court, the FCC grounded its rules in the strongest legal authority. It did so by ruling that broadband is a "telecommunications service" under Title II of the Communications Act. Title II is the portion of the law that gives the FCC power to protect consumers from, among other things, fraudulent billing, privacy violations and price gouging. Last June, a federal court upheld those rules, making net neutrality the law of the land.
Unfortunately, current FCC Chairman Ajit Pai has announced his intention to take a "weed whacker" to the rules and to the legal authority on which they are based. More recently, he said, "I favor net neutrality, but I oppose Title II." This should fool no one — there's no net neutrality without clear FCC authority to protect consumers and competition in the broadband market. Right now, that authority is vested in Title II.
What's next? Currently, Congress and the FCC are playing a game of chicken — each wants the other to go first. My guess is that the FCC will start the process to reclassify broadband as a deregulated "information service." That will give Congress leverage to try and pass legislation that would nominally protect net neutrality, but would strip the FCC of all authority to oversee the broadband market.
Wouldn't legislation be a good thing? Net Neutrality legislation could be a good thing if it put into place the three bright line net neutrality rules — no blocking of content, applications and services; no throttling of the same; and no paid prioritization — and also gave the FCC unambiguous authority and flexibility to protect consumers and competition in the broadband market.
But I don't expect congressional Republicans to offer such a deal. In 2015, Sen. John Thune floated a bill that would have put in place the three bright line rules, but would have stripped the FCC not only of its authority under Title II, but also under another provision of the Communications Act (known as Section 706).
The goal then, as it is now, is to defang the FCC, leaving the FTC to oversee the broadband market. As much as the FTC has been a great partner to the FCC, it's not an expert on communications networks, and its toolkit for protecting consumers is far more limited.
What all this means: Net neutrality is under assault. But repeal of the rules is by no means a done deal. Like the Affordable Care Act, Americans won't sit by and allow rules that have protected their ability to use the most important communications network in history to be taken from them. Whether the fight is at the FCC, Congress, or both, policymakers should brace for an enormous battle over the future of the internet.
Gigi Sohn is an Open Society Foundations Leadership in Government Fellow and served as counselor to former FCC Chairman Tom Wheeler.