Regulating the Open Internet: A Letter to Pro-growth Progressives

To Whom It May Concern:

As Democrats who care about the dual priorities of protecting broadband consumers and stimulating broadband investment, we are gravely concerned about President Obama’s endorsement today of monopoly-era, common carrier regulations (called “Title II”) for broadband providers. The president’s proposal does not balance these goals, nor move us towards compromise on other, arguably more critical, communications issues.

First, Title II is not necessary to protect consumers from the hypothetical threat of discrimination by broadband providers against edge providers. In Verizon v. FCC, the D.C. Circuit made clear that the Federal Communications Commission (FCC) could regulate pay-for-priority deals—and even reverse them after the fact—under Section 706 of the 1996 Act.

Second, Title II itself isn’t guaranteed to stop pay-for-priority by broadband service providers. Title II would merely require that the terms of any pay-for-priority deal be extended to all comers. The monopoly-era cases of generations ago in which the FCC used Title II to proscribe “inherently unjust” conduct have nothing to do with a competitive broadband provider offering paid priority. Thus, the prospect that Title II could be used to bar pay-for-priority deals is very small.

Third, the more likely rationale for imposing Title II is to pursue an aggressive regulatory agenda unrelated to net neutrality, in particular, “unbundling,” the policy that requires companies that make investments in broadband infrastructure to share them with competitors at government-set prices. But when this policy was ended in the decade following the bi-partisan 1996 Act, an explosion of investment by telcos and cable companies in broadband infrastructure resulted, which allowed the U.S. to catch up to the rest of the world. Both the Clinton and Bush Administrations supported this consensus. Moving backwards to a forced-sharing regime would likely chill broadband investment, along with its job-creation and impact on growth, and preserve the “digital divide.”

Fourth, the net neutrality saga has diverted the FCC’s resources for nearly a decade. By eschewing real compromise made possible by the D.C. Circuit Court, and instead pursuing a radical prescription of Title II, the FCC guarantees itself a drawn-out litigation battle with broadband providers. Other, more critical policies, such as broadband deployment in underserved areas and freeing up spectrum for wireless, will sit on the back burner.

Broadband providers have made clear they would not challenge net neutrality rules based on the FCC’s Section 706 authority, so long as the rules made some effort to accommodate arrangements with edge providers that led to new and improved services. That compromise would be consistent with the desire expressed by the American electorate to find the middle ground and reject extreme intervention in the U.S. economy.


Ev Ehrlich, PPI Senior Fellow

Michael Mandel, PPI Chief Economic Strategist

Hal Singer, PPI Senior Fellow