The internet has enabled some of the most critical advances in work and communication in history. The best way to allow the internet to continue to reach its full potential was established by President Bill Clinton in 1997, when he said it “should be a place where government makes every effort … not to stand in the way, to do no harm.”
In 2005, the Federal Communications Commission developed four policies that met Clinton’s standard to regulate internet service providers, or ISPs, with a light touch. Consumers are entitled to: access the lawful internet content of their choice; run applications and services of their choice, subject to the needs of law enforcement; connect their choice of legal devices that do not harm the network; and competition among network providers, application and service providers, and content providers.
Then-FCC Chairman Kevin Martin stated, “I have long believed that consumers should be able to use their broadband internet access service to access any content on the internet. Consumers have demanded this ability, and cable and telephone companies have delivered it. In a competitive marketplace, providers must do so. They provide a service that consumers want, or they do not succeed.”
Martin continued, “The steps we take today to place all broadband internet access providers on a level playing field will make this marketplace only more competitive, further strengthening the forces that best deliver choice, affordability, innovation, and quality to consumers.”
The internet was regulated in this manner until the FCC, under the Obama-Biden administration, issued its Open Internet Order of 2015, or OIO, also known as “net neutrality.” The OIO determined that ISPs would be a utility, subject to the old-fashioned copper-wire telephone rules under Title II of the Communications Act of 1934, rather than as an information service under Title 1.
This interruption in keeping the government mostly out of the way was rescinded by the Restoring Internet Freedom Order of 2017, or RIFO. The benefit of the order was made especially evident in 2020 during the coronavirus pandemic, when tens of millions of people had to access the internet to work, learn, access healthcare, and shop for groceries.
Unlike Europe, which had to slow down internet access due to a regulatory scheme similar to the OIO, the United States easily met the massive increase in demand.
After RIFO, broadband access increased across the country for all people, according to a June 2019 Pew Research Center report. Also, USTelecom found that broadband provider capital investment increased by approximately $3 billion in 2018, continuing an upward trend that began after it dropped by $4 billion between 2015 and 2016.
The group noted, “The decline in capital investment starting in 2015 and the recovery that started in 2017 suggest the likelihood of a negative regulatory impact from the 2015 utility classification of broadband providers and, conversely, a positive impact from a return to a more forward-looking policy environment in 2017.” In other words, if the RIFO had not been adopted, broadband investment and innovation would likely have continued to decline.
That is, unfortunately, what is likely to happen during the Biden administration. The progress made by ISPs to expand broadband across the country could be for naught.
Once a new chairman of the FCC is confirmed by the Senate, the agency will begin the process of overturning the RIFO. Demands are already coming from net neutrality proponents to reinstitute the Title II heavy-handed government regulatory regime on the internet as the first priority for the next leader of the FCC. Some are suggesting the Obama-era OIO is just a starting point and that regulations should be even more restrictive.
This would be a serious mistake, as it would once again cause ISPs to cut back on investment and innovation and continue to create uncertainty about the rules and regulations across the country each time there is a change in administration.
The only way to stop this regulatory roller coaster is for Congress to step in and update the telecommunications laws. Maintaining U.S. leadership across the globe in technology and telecommunications, particularly in the race to 5G, which cannot be won by China or any other country, is far too important to be left up to five unelected officials in the FCC.
Today’s communications ecosystem has evolved far beyond anything that was imagined when the Communications Act of 1934 and subsequent laws were enacted. Congress should not let net neutrality come back and should put an end to this longstanding and unnecessary debate by passing legislation that defines the internet permanently as an information service.
Deborah Collier (@dcolliercagw) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is vice president for policy and government affairs for Citizens Against Government Waste.
