By Mike Montgomery
When the U.S. Court of Appeals backed the Federal Communication Commission’s (FCC) so-called net neutrality rules this week, PC World nailed the problem with its headline: “The decision will be challenged, and the case could drag on for years.”
Regardless of how the court ruled, net neutrality was destined to play out in courtrooms for the next decade as policymakers, technologists and consumers grapple with how to ensure open access to the internet while not crushing innovation and discouraging investment that created the Web in the first place.
Today the battle is largely between ISPs and edge providers. But as we’ve seen with buyers’ remorse statements from companies such as Netflix and Cloudflare, as well as EFF’s John Perry Barlow, in the future these legal battles may become more muddled as tech titans realize that they could be captured by the rules designed to keep the internet accessible to all.
These battles would test the patience of Bill Murray’s character in “Groundhog Day,” which is why there is only one entity that can settle the issue once and for all: Congress. Critics of the FCC contend the agency overstepped its bounds and applied 20th Century rules to innovative and rapidly changing technologies. At the same time, everyone wants to ensure that the internet continues to remain open and that we don’t create fast lanes, ban blocking and enhance transparency.
Only Congress can solve this problem by rewriting the laws that the FCC uses to base its rules. However well meaning the FCC was with its approach, two obvious negatives exist. The first is that the uncertainty over a decade-long legal fight leads tech companies – both those that supply the pipes and those who rely upon them – to play wait and see on new investments or innovations. That’s bad news for consumers and really bad news for an economy that needs a tech jolt.
The second is that we risk accepting that the Web deserves to be treated no differently than our water or electrical utilities – plodding and innovation-free, devoid of competition. That harms consumers and innovators alike due to a lack competition, choice and investment.
Both the Senate and House have already started nibbling around the edges of legislation with the House voting to exempt small ISPs from certain rules, followed by a Senate subcommittee following suit. Sens. John Thune and Bill Nelson continue to work toward a legislative solution as well.
But it’s imperative we have a more concrete and long-term solution that addresses how we keep the internet flourishing without the doomsday scenarios of lawyers creating an innovation limbo or FCC mission creep that extends Title II to more companies. Complicating matters is the presidential election, which will likely usher in new leadership at the FCC. New leadership could lead to a new interpretation of the rules, more (or less) forbearance and……ongoing uncertainty.
The antidote to uncertainty is Congressional action. We all know nothing will happen this summer and fall, but this must be a priority for a new president and new Congress. If it is not, like Bill Murray’s character, we will wake up every day hoping for a resolution, but realizing we remain frozen in time. That’s not how the internet works, and not what’s good for the future of our economy.
Mike Montgomery is executive director of CALinnovates, a California-based technology advocacy coalition.
This piece was originally published in The Hill.