Congressional Solution to Net Neutrality Should Focus on Return to Open Access

Net neutrality has had it’s day at the FCC, and the results are anything but shocking. FCC Chairman Ajit Pai has had his sights on eliminating consumer protections, and accountability for Telcos since he was first appointed to his post in 2012While tech companies are continuing to unify their organizational strength, it‘s an ideal time to start gameplanning the next phase.

At this point, a legislative solution to neneutrality is looking like we’d get the same pig with lipstick. Telcos/ISP giants like AT&T, Verizon, and Comcast are already calling for a congressional solution, and big tech such as Facebook, and Netflix are cuddling up to the idea as well. Nothing against them, but I’d speculate it’s because they know they can afford to pay the fast lane tolls. Unfortunately though, most companies not on the aforementioned list (i.e. everybody else) will have a hard time getting a word in edgewise in that legislative solution. It is this unfolding reality that should concern usmaller companies and innovators – and why it’s essential we prepare for the next fight born of the net neutrality movement. A fight that wilhopefully change the Internet for the better. 

Looking for that solution is as easy as going back to the 1990s, when the dawn of the Internet was thriving under an Open Access policy. In the early days Independent ISPs could run their services over existing infrastructure, which enabled companies of all sorts to enter the market, and ultimately created competition and options for consumers. The big Telcos were pleased (at first) to simply supply all the copper lines into homes. The marketplace was rife with providers, and many cities had 20-30 competitive, independent ISPs. This benefit for consumers allowed them to select providers based upon what was important to them – whether that be price, privacy protection, service quality, or any number of factors. Consumers enjoyed a level of choice in their Internet service absolutelyunimaginable today, where you can choose between oligopoly 1, oligopoly 2, or nothing, as is the case in much of rural America.

That marketplace is so far removed from today’s muddled debate over net neutrality that even this concept which helped launch the early Internet has been all but lost.  

Open Access separates the physical line from delivery of Internet services, so more providers than just the physical line operator can provide Internet access. A good analogy for Open Access is the deregulated electrical market and its separation of the electrical line from electricity delivered over that line. Under this model, the electricity line is considered a natural monopoly regulated with a fair profit to the power line provider maintaining the line. Consumers can choose from hundreds of electricity providers to supply electricity over that single line. Open Access is the same model – a single line to the home with regulated price and a fair profit over which anyone can provide Internet services, including the oligopolistic ISPs existing today. But, under Open Access, these providers must truly compete with independent, “mom and pop” ISPs. 

Open Access thrived until the early 2000s, when the FCC fell for Big Telcos promise that in exchange for increased control over Internet infrastructure, and a whole lot of taxpayer subsidies, they’d make massive investments in physical lines to increase speeds. That massive investment didn’t happen, and almost two decades later we still have the same copper lines into most homes. All competitive independent ISPs disappeared as a result, and now 95% of Americans have a choice of only one or two suitable ISPs. Open Access died when the FCC allowed Big Telco to turn off its competition, allowing the U.S. to decline globally as we currently rank 15th for download speeds, and 24th for uploads. The country that created the Internet doesn’t even make the top ten. That’s like seeing the Kansas Jayhawk’s unranked in basketball. It would be unacceptable and force a dramatic change in direction.

Today net neutrality gets all the buzz – and debate. But the truth is, Net Neutrality was introduced as a band aid solution to prohibit oligopolistic providers from restricting access to content and services over their networks. The FCC enforced net neutrality under something called Title II, and a ruling with a misleading name – the Open Internet Order of 2015. To be clear, net neutrality is better than no net neutrality, but it doesn’t solve for the complete lack of competition at the “last mile” of the Internet – it reinforces it! If we continue to debate net neutrality, the argument won’t be about whether or not ISPs can block, throttle, restrict and monitor traffic (they’re already doing these things,) but instead about how much they can block, throttle, monitor and restrict. So, while like many others I am concerned about the current Internet space without the protection of net neutrality, I also struggle to defend a flawed principle that functioned ineffectively.

Instead of advocating for a solution that requires a lack of competition, we should advocate for the right solution — a return to Open Access. Open Access allows for a competitive marketplace where consumers can choose with their wallet and support ISPs that don’t snoop, filter, deliver slow speeds or provide awful support. Open Access is akin to the structure of the electric utilities market, which is hailed as a model across party lines – even by those strongly opposed to net neutrality. It makes perfect sense for the Internet, too. Other countries use Open Access effectively, and in the UK, for example, most markets have multiple ISP options with competing providers actually offering faster speeds at lower prices. Compare that to your current ISP provider, who offers average speeds at higher prices.

In the United States the Internet began open, and for it to continue to thrive it must go back to being open. Grasping on to net neutrality guidelines will not solve the problem. It’s time for a solution that enables a truly free and open Internet. 

We need to respect the Internet for what it is – one of the greatest inventions of mankind. We need to recognize that the Internet has transformed into an indispensable part of life for every American. We need fiber, not copper. We need competitive ISPs in every city in America. We need Open Access.

Carlos Espinosa

Carlos manages Golden Frog's government affairs on the local, state, national and international levels to educate and influence policy around privacy, encryption and the open Internet. He has served in government affairs for over 20 years.

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