A new direction for the net neutrality debate

Abstract

In recent years, the Federal Communications Commission (“FCC”) has become a microcosm of the political battles in Congress. The Democratic-controlled Wheeler Commission entitled its Net Neutrality Order “Protecting and Promoting the Open Internet.” Not to be outdone, the Republican-controlled Pai Commission that overturned that Order entitled its own “Restoring `Internet Freedom.” And like Congressional pronouncements, Commissioners look to grab headlines with dramatic statements of impending doom if their policies are not enacted. We show that the untold societal damage that both sides claim have relatively little to no factual support. Outmoded distinctions between information and telecommunications services exacerbate the situation because a good deal of regulatory history is built on them. As a potential way forward toward reliance on theoretically-sound, evidence-based decision-making, the authors recommend moving away from the silo mentality of focusing on whether particular services are information services or telecommunications services (e.g., Broadband Internet Access Service (BIAS)) toward a focus on packet transmission across broadband networks. Such an approach would facilitate fresh perspectives with the objective of more collaborative, less confrontational regulatory decision-making.