How the FCC Can Save Net Neutrality and Still Ruin the Internet

Prolonged discussions of Federal Communications Commission regulations are typically about as stimulating as a fistful of Ambien -- except when it comes to net neutrality.

With the FCC poised to issue new rules governing how Internet service providers manage and price the traffic that flows through their networks, Americans woke up and spoke up so loudly that they crashed the agency's website last month. The million-plus comments from concerned citizens were the most the FCC has ever received during a proposed rule's public comment period -- and just a few hundred thousand shy of the number of complaints that poured in after Janet Jackson's infamous "wardrobe malfunction." When we're comparing tech regulations to Super Bowl nipple slips, you know we're in a different kind of debate.


The debate so far has been oversimplified: Are you for net neutrality or against it? That reductive framing may lead us to embrace a solution that doesn't solve the problem.

From where I sit at CALinnovates, representing tech companies dependent on the open Internet to survive, this debate is incredibly important. Disruptors like ride-share platform Sidecar and conference-call service Speek shouldn't be forced to bid against deep-pocketed giants -- or anyone, for that matter -- for their share of bandwidth. Nor should they be forced to adapt to regulations that would suppress new ideas or hamstring the entrepreneurs who hatch them.


Unfortunately, it's not so simple. Let me explain. The leading proposal in Washington to achieve that goal is to reclassify broadband providers as "telecommunications services." This would allow the FCC to regulate providers using authority granted it under Title II of the Communications Act of 1934.

As you have undoubtedly noticed, the Communications Act of 1934 was passed in 1934. That means the FCC is gathering input as it considers adopting the same legislative framework for the Internet that existed back when "wireless" meant the hand crank on your grandparents' AM radio.

Title II turned our nation's telephone system -- a single network operated by a single company, Ma Bell -- into a highly regulated utility, just like water and electric companies. While they helped protect consumers from the excesses of a corporate monopoly, Title II's restraints hardly made that phone network an innovative one.

Ask your parents: Under Title II, innovation in telecom meant being able to buy a different color of the same phone chosen by the monopoly at a price set by the government. This same law can't accommodate today's sprawling, bustling, magically fragmented Internet, a miracle of technology unimaginable in 1934 -- or even in 1996, when the act was updated for the "modern" era.


It sounds far-fetched, but that's how it would work. Under Section 214 of Title II, common carriers have to ask for approval before discontinuing nonperforming platforms or launching new ones.


Under Section 222 of Title II, companies have a duty to protect the confidentiality of customers' proprietary network information. Sounds benign, right? Well, it means wireless location data could no longer be shared with Internet companies for mapping or advertising. Location-based companies would be limited by, in the regulators' lyrical stylings, the "use or disclosure" of "call location information concerning the user of a commercial mobile service." In plain English, that means companies like dating service Tinder, car navigation service Waze and ride-sharer Uber could soon become relics of the past. At the least, they would have far higher hurdles and costs in launching and attracting investment capital.

The big losers in all this would very likely be startups and the consumers they seek to serve. For large, established digital companies, these new regulations would probably just be an inconvenience. For startups that don't have the resources to fight Title II classification, or the in-house legal teams to interpret the new requirements, the rule changes would be a death knell.

Before we trade the devil we know for the devil our grandparents knew, we should pause to ask ourselves whether legally defining the Internet as a utility will keep it both open and innovative -- or act as a drag on creativity and growth.
