Interview with Congressman Joe Kennedy III: Net Neutrality
On December 14th, FCC chair Ajit Pai plans to repeal Obama-era regulations on Net Neutrality, opening the door for internet service providers (ISPs) to favor content across the web and regulate their customer's sources of information. Critics of the plan worry that ISPs might charge some websites to reach their customers at suitable speeds--a cost that would undoubtedly be transferred to consumers--or that ISPs could artificially speed up access to sites they own or have an interest in, while slowing down competitors or content critical to their interests. The proposed change has been in the works since President Trump appointed Pai chairman (he was originally appointed to the FCC by Obama) on January 23rd of this year, and the battle to influence the FCC's decision has been messy. Telecommunications companies have spent heavily on ad campaigns attempting to downplay the change, social networks like Reddit and Twitter have seen strong reactions from users attempting to protest it, and the FCC's website has been inundated with millions of comments, many of which appear to have originated from fake accounts.
In September, The Politics Beat sat down with Representative Joe Kennedy III (D-MA) to discuss the FCC's proposed rule change.
The FCC has recently voted to eliminate title II (a proposal which will be enacted in December), and there’s yet to be congressional action on restoring it and frankly, due to House Joint Resolution 86 and Senate 34 (resolutions backed by the telecom industry allowing internet service providers to sell client’s internet history without their consent) it seems unlikely. The telecommunications industry has a lot of lobbying power in Congress, so given that Net Neutrality could be considered a free speech issue, do you think that there’s any opportunity for bipartisan support on Congressional implementation of Title II, or do you think those protections are going to languish under this Presidency?
Well, I, would urge my Republican colleagues that are basically lining up behind Chairman Pai’s vision on this to be wary of the fact that you see the pendulum on this sort of thing swing one way, and then swing back the other way; if you let the pendulum swing too far back you’re eventually going to see it swing far back in the original direction. So what those telecommunications providers have said is “we don’t want” – one, obviously they don’t want that Title II authority* – I also don’t think that if there’s a Democratic President that is elected in four years, that says hey “you know what, I have the authority to reinstate Title II” and they reinstate Title II, do they want to go back and have to go through this whole process all over again? So, I do think that this is one where it is worth everybody taking a deep breath and saying: the concern here is actual consumer protections and privacy protections that were put in place by the Obama administration. They sought to do so (organically) and turns out that they were blocked because of the lack of Title II authority, [so they reclassified broadband providers are "common carriers"]. So I would encourage Republicans to take a pause and say "are there ways"—if Pai says we’re going to rescind that Title II authority—"are there ways that we can still satiate those concerns of consumer and privacy advocates?" Because various internet service providers are essentially going to be able to regulate the content that they want to be able to promote and that is a big problem."
To make sense of Kennedy's answer it's important to provide a little context and explain the actual nuts and bolts of Pai's Title II proposal.
Title II refers to part of the Communications Act of 1934 which gives the Federal Government the ability to regulate utilities (like electricity and landline phones) designated as "common carriers." When the Obama administration attempted to enforce new guidelines for broadband service providers in 2015, its Justice Department found that it lacked the authority to do so because ISPs were not designated as "common carriers," but were instead classified as "information services" under Title I of the Communications Act. So in 2015, on a party line vote, the FCC voted 3-2 to classify ISPs as "common carriers," allowing the Obama administration to issue the Open Internet Order of 2015 and establish the current Net Neutrality guidelines for ISPs.
Chairman Pai wants to undo the change in classification, arguing that the rule change hinders investment in ISP and raises barriers to market entry, reducing competition in the industry. He makes a valid point: net investment in ISPs has fallen by 5.6% since the rule change in 2015, and providers spend millions on compliance efforts that their smaller competitors cannot afford. And before 2015, it is not as if everyone with Verizon broadband was forced to use Yahoo instead of Google (Verizon owns Yahoo). But there is evidence that ISPs are willing to violate the spirit of Net Neutrality lacking the regulatory incentive to do so. A list of cases can be found here. The regulations weren't for nothing, and if providers are really willing to abide to Net Neutrality principles, then they shouldn't object to their existence in regulatory codes.
But Kennedy gets to the central complication of this issue: as is stands right now, there is no statutory basis for Net Neutrality enforcement. This means that as the executive branch goes, so does the FCC and its regulatory guidance, and ISPs could experience multiple shifts in the basic rules regarding how they can offer services to customers over the next few decades, something that could cost the industry (and in turn, consumers,) millions of dollars. If there is to be definitive and meaningful action, it must come from Congress, and not the FCC.
But that is not to say that the debate as it stands is not important, and that is not to say that there is no right answer to this debate. Net Neutrality protections at the risk of reduced ISP investment are a price worth paying, and just because ISPs did not offer categories of internet service or significantly abuse Net Neutrality principles in the past, does not mean that we can trust them not to do so in the future. Every American, including Republican and Democratic lawmakers, has a vested interest in the integrity of their speech and the speech of others. Without Net Neutrality regulations on the legislative books, we risk corporations injuring our ability to effectively and efficiently communicate with one another, something that might prove to be especially dangerous.
For now, we ought to be opposing Chairman Pai's efforts to reclassify broadband services, but in the long run, we have got to demand that our representatives write legislation which keeps our internet free for good.