It’s Time for Congress  to Step Up to the Plate on Broadband Reform

The recent vote by the Federal Communications Commission’s to put nearly all internet service providers under Title II of the Communications Act is the latest in what have been a string of regulatory decisions that threaten broadband investment. But if Congress has the will take a just a handful of bold and decisive steps, it could salvage the future of innovation for American consumers.

Title II is about much more than net neutrality. It is the same type of expansive and heavy-handed regulation that governs public utilities. The FCC’s decision is a sharp reversal from decades of light-touch regulation, which has served to foster America's leadership in broadband innovation and investment. The industry will now face the yoke of onerous federal regulation and meddling, which threatens to stifle and slow future investment and experimentation.

Fortunately, Congress has the power to step in and take steps to foster ongoing broadband investment, access, and adoption.

Congress should explicitly classify broadband under Title I, take other actions

First and foremost, Congress should pass legislation that explicitly classifies broadband services under the more flexible Title I of the Communications Act. This would provide long-term regulatory certainty and prevent the constant back-and-forth between Title I and Title II that has plagued the industry for years. Broadband providers need a stable regulatory environment to be confident about their investments in network upgrades and new technologies that benefit consumers.

In addition, Congress should vote to restore the FCC’s wireless-spectrum auction authority. More than a year ago, this authority lapsed, and only Congress can bring it back. The ability to conduct spectrum auctions and issue new licenses is essential to deploy next-generation 5G and other wireless services that are crucial to the nation’s economic competitiveness. Policymakers on both the left and the right argue that increased 5G investment should be a national security priority. Allowing this authority to expire has created unnecessary uncertainty and delays in the rollout of these vital technologies.

Congress should also take steps to provide continued funding for the Affordable Connectivity Program, which helps low-income households to access affordable broadband services. This popular program is set to run out of funding soon, and allowing it to lapse would be a devastating blow to the millions of Americans who rely on it. By renewing and potentially expanding the ACP, Congress could help ensure that all Americans, regardless of income level, have access to the essential utility of high-speed internet. And don’t forget it’s an election year. Bringing back home bacon to millions of ACP recipients may be the boost that some swing-district legislators need.

The 2021 bipartisan infrastructure act included a short section mandating the FCC adopt rules preventing “digital discrimination.” In the rush to get that bill passed, Congress made a mess with vague and somewhat contradictory language. The FCC took advantage of this ambiguity and ran with it by applying a disparate-impact framework that covers nearly every entity and activity associated with the delivery of broadband services. Now, under these rules, organizations run the risk of being charged with discrimination—even where it wasn’t intended or doesn’t exist. If any deployment decision can trigger a discrimination charge, providers will be hesitant to invest at all.

Congress should revisit digital discrimination and amend the statutory definition to be limited only to intentional and harmful discrimination in deployment. This would strike a better balance between addressing legitimate discrimination concerns and ensuring that providers can invest in expanding internet access.

The FCC’s decisions on net neutrality and digital discrimination are likely to be overturned by the courts, injecting even more uncertainty into an already uncertain regulatory environment. Rather than wait years for the courts to decide, Congress can take targeted actions now to provide stability and certainty for the broadband industry, allowing for continued investment and innovation. Consumers would benefit from faster, more reliable internet service, while low-income households would retain access to affordable connectivity through the ACP.

Moreover, these measures would help to prevent the internet from becoming a political football, with the regulatory landscape constantly shifting with each new administration. By establishing clear, bipartisan policies, Congress can ensure that the internet remains an engine of economic growth and opportunity for all Americans, regardless of their political affiliation.

The stakes are high, and the time for action is now. Congress must not dawdle while the FCC pursues a misguided course that risks undermining the internet's remarkable success story. By taking decisive steps to reverse the FCC's reclassification and address other pressing telecom issues, lawmakers can lay a path to a brighter future for the internet and all who rely on it.

Eric Fruits, Ph.D. is a senior scholar at the International Center for Law and Economics and an adjunct professor of economics at Portland State University. This Expert Opinion is exclusive to Broadband Breakfast.

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