Title II Is the Best Way to Protect the Internet. Period.

Last week, Free Press VP of Strategy and Senior Counsel Jessica J. González testified in  Congress about the importance of restoring real Net Neutrality protections and a strong legal framework for internet users’ rights.

During the hearing, three of the Republicans representatives there (Bob Latta, Cathy McMorris Rodgers and Greg Walden) tried to upstage these arguments by introducing fake Net Neutrality bills.

We haven’t seen the full text of all of these bills yet, but we know what they’ll do because they’re all dusted-off versions of earlier ISP-written bills. And we know what these members say: “Everyone wants Net Neutrality, we just disagree about how to do it!”

But experts, activists and overwhelming majorities of both Democrats and Republicans supported keeping the FCC’s 2015 Net Neutrality rules. They want and need the full protections of the FCC’s 2015 Order restored.

These three members of Congress would rather propose loophole-filled legislation that claims to preserve internet freedom — all without the supposedly “burdensome” legal foundation that supports it: Title II of the Communications Act.

Trouble is, this isn’t a minor difference of opinion. People actually need Title II and all of the protections it provides for internet users.

Here’s why.

Title II is the right law

First off, Title II just makes sense. Congress designed this part of the Communications Act for “telecommunications services,” which is the proper framework and definition for broadband from both a legal standpoint and an engineering standpoint.

ISPs are common carriers, meaning they transmit our speech for us. They don’t pick and choose what we can say or see online. They offer service to all comers, and we expect them to carry our data across the internet without undue interference or unreasonable discrimination.

Telecom services are also different from websites or other “information services.” Title II is the right law for internet-access networks, even though it doesn’t apply to big websites and platforms.

Those entities have a lot of power, and we need to think about ways to rein in their abusive practices. But powerful platforms are still different from the pathways that lead to them, much like Walmart is different from the roads that lead to Walmart.

But even if it’s the right law for the job, what about those “burdens”? The thing is, Title II isn’t burdensome at all. ISPs claimed that being reclassified as Title II common carriers would depress investment, but while the 2015 Open Internet Order was in effect, two-thirds of publicly traded ISPs actually increased their investment.

We’ve debunked these phony investment claims a hundred times over, but if you need a refresher, Free Press wrote the book on how Title II’s investment burdens turned out to be a big old nothingburger.

Longtime Net Neutrality fans might also remember that Title II is the only existing legal foundation for Net Neutrality rules that has held up in court. Before 2015, other FCCs tried again and again to protect the open internet without using the law that Congress wrote for the job — only for the courts to shoot down those inadequate frameworks.

By contrast, courts twice upheld the Obama FCC’s 2015 Open Internet Order. So we don’t “need” a new law like the ones that Walden & Co. propose. The one we had was working just fine for business, and the courts had approved it too.

(We won’t even dignify the notion floated during the hearing that Title II is a bad law because it’s old. Even though it was first passed in 1934, it was updated in 1996 for the internet era. And lots of other laws that Republicans support are even older: the Federal Trade Commission Act of 1914, the antitrust laws written in 1890, and this little thing we call the Constitution … ).

But not only is Title II legally sound and burden-less for broadband providers, it’s absolutely critical to protecting real internet freedom.

Real Net Neutrality means no loopholes

You might remember that the 2015 Net Neutrality protections enshrined three very important “bright-line” rules, preventing ISPs from blocking content, throttling traffic or discriminating against specific content for a fee. All three bad bills claim to protect Net Neutrality by restoring only these rules (or even less than that).

But real internet freedom requires more than just those bright-line rules. Blocking and throttling are obvious Net Neutrality violations, but what about arbitrarily low data caps, or self-enriching zero-rating schemes, or slowing internet traffic to a crawl by ransoming interconnection fees with edge providers like Netflix and in the process slowing everyone else down too?

That last scenario is exactly what happened in 2014 as the FCC debated Net Neutrality but hadn’t settled on the strong rules yet. What do we do when ISPs “innovate” new ways to unreasonably discriminate online, by tap dancing around these prohibitions and avoiding the three bright-line rules?

Under Title II, the FCC had the power to investigate these kinds of suspicious new practices and gray areas in order to decide whether they presented threats to the open internet.

Without giving the FCC the flexibility to evaluate the situation, make new rules and respond to changing circumstances, these fake Net Neutrality bills amount to throwing one stone in a river and calling it a dam.

But the water — and ISPs’ anti-competitive behavior — can just move around it.

So, restoring only the bright-line rules would leave huge loopholes in our Net Neutrality protections — and there’s also more than Net Neutrality at stake.

Fake legislation with far-reaching consequences

By scrapping its Title II authority over broadband, the FCC either abandoned or vastly weakened its ability to:

• Protect users from ISPs’ privacy invasions

• Promote broadband competition in both wholesale and retail markets

• Promote broadband deployment with the Universal Service Fund (USF) housed in Title II

• Modernize and promote the Lifeline program, another part of the USF that makes phone and internet services available and affordable to low-income families

• Ensure ISP disclosure of hidden fees, penalties and data caps

• Investigate or take enforcement action against improper billing of broadband customers

• Promote interconnection and prevent unreasonable fees that ISPs might try to charge to websites

• Promote public safety by ensuring that first responders can communicate with each other and the public during crises

• Ensure reasonable access to broadband for disabled people

When the FCC ditched its Title II authority, it essentially walked out on the job of protecting the public, leaving broadband users potentially vulnerable to privacy violations, extortionate and monopolistic prices, billing fraud, dwindling competition and all manner of shady practices.

We need an FCC that’s fully equipped to protect real Net Neutrality and to implement these important protections enshrined in Title II. Any legislation that fails to measure up to that standard is a bad deal.

And wouldn’t you know it, all three Republican bills fall seriously short, because none of this fake Net Neutrality legislation would restore the FCC’s Title II authority and all of the rights we lost with the Pai FCC’s repeal. In fact, they’d even make it impossible for a future FCC or the courts to restore Title II.

These bad bills represent just another game of bait and switch, where internet-freedom opponents try to take credit for supporting Net Neutrality — while doing everything in their power to undermine it.

If Congress wants to pass a real Net Neutrality bill, it has to do it in a way that restores the 2015 rules and rights in their entirety.

In other words, if we want the same rights, we’ll have the same fights. And internet users are ready for them.