US Senator John Thune’s Weekly Column: The Internet Needs a Law, Not a Regulation

The Internet Needs a Law, Not a Regulation
By Sen. John Thune 

Too often, politicians and activists of all stripes prefer slogans over solutions. Recently, Silicon Valley players, big and small, and many Washington, D.C.-based activist groups led a protest to “save net neutrality” from the Federal Communications Commission’s (FCC’s) proposal to undo regulations the agency adopted two years ago. True supporters of an open internet, however, should demand more than another slogan. What the internet needs to end regulatory uncertainty and recurring threats of litigation is an enduring, bipartisan law from Congress to protect internet freedom by codifying widely accepted net neutrality protections.

As we consider the future of the internet, we should also remember the history that got us here. Put in place after President Barack Obama pressured regulators to scrap efforts to find agreement, the FCC’s 2015 order regulating broadband internet under a Great Depression-era statute (“Title II” of the Communications Act of 1934) had support from just one political party. This action failed to embrace a self-evident reality — administrative rules, especially those affecting all internet users, need to have a broad consensus of support behind them in order to withstand future political changes. This reality has hit some activists too late, and others are still trying to ignore it — to the detriment of the very protections they claim to support.

Although President Obama tried to justify the use of unilateral administrative action as a remedy for supposed reluctance by Congress to work together, the FCC’s partisan proceeding actually advanced, despite pleas from myself and other Republican colleagues who wanted to work with the Democrats on a new bipartisan law.

The draft proposal we released more than two and a half years ago as a starting point for discussions would have outlawed the online practices of blocking, throttling and paid prioritization of legal content over broadband cable and wireless connections. It put forth a 21st century framework to protect internet freedom by ensuring that corporate owners of broadband infrastructure couldn’t use their role to manipulate the internet experience, and guaranteeing that the sometimes heavy hand of government wouldn’t itself disrupt the positive disruption that has allowed the internet to thrive for two decades. I called for a bipartisan legislative solution before the Obama administration’s partisan actions, I pushed for it after them, and I continue to fight for it.

Like many organizers of the recent protest, I vigorously support an open internet. But as a senator representing a rural state, I am concerned that such protests often given short shrift to ensuring all Americans have access to high-speed internet.

Today, 34 million Americans, mostly living in rural America, lack access to high-speed broadband services at home. As broadband service providers (and there are nearly 2,000 primarily small providers in the U.S.) weigh the profitability of making investments in high-cost areas, fear of future shifts in the political winds still loom large. Stated bluntly, investments to connect more Americans in states like South Dakota may be slowed, or not made at all, if providers fear that regulators will pass new restrictions on their ability to recover costs and make fair profits from new infrastructure investments.

Left unchecked, some believe that the views of regulators toward the online ecosystem will continue to shift with the federal government’s political leadership. This, in turn, creates a lack of stability both for those companies that invest in the internet’s metaphorical pipes and those who invest in the data flowing through them. This presents a problem for those who favor keeping the FCC’s 2015 regulatory approach and also those who want to throw it out the window. As one technology reporter observed earlier this year about past and potential future shifts in FCC regulations, “We’re in danger of having a system that combines the worst features of a world with network neutrality and a world without it.”

The solution to this dilemma, passing enduring bipartisan legislation, is obvious and — no, I’m not kidding — within Congress’s reach. If Democrats and Republicans have the political support to work together, we can together enact a framework that provides the net neutrality protections wanted by so many internet users, reasonably limits the whims of partisan regulators, and grants the necessary flexibility to protect consumers from future harm.

Let’s not settle for slogans and instead demand a resolution that finds agreement and concludes this debate. Let’s embrace the idea that the internet is a symbiotic ecosystem. Many businesses and individuals contribute to the internet’s success, and ultimately they need each other to ensure that users continue to benefit from it. True supporters of a free and open internet should spend their energy driving leaders toward a lasting and bipartisan solution while rejecting efforts to politicize and further divide an emerging consensus about net neutrality protections.

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