What are next steps for Congress on net neutrality?

[Commentary] Indications are that Congress is likely to take up network neutrality once the court rules on whether the Federal Communications Commission overstepped in its 2015 Open Internet Order. The intent at least on the Senate side is to have strong net neutrality provisions. The House seems less likely to take that position. Are there ways to have our cake and eat it too? Can we have dynamic industries and regulation? Yes, as long as the regulatory framework is consistent with a constantly improving tech ecosystem of networks, edge providers, customers, and others yet to be named. Congress has at least three options that would promote a robust and open Internet, allow innovation to flourish, and protect vulnerable customers and fledgling edge providers. These approaches apply to interconnection between Internet Service Providers (ISPs) and between ISPs and edge providers.

First best: A multistakeholder process -- The preferred option is to direct the FCC to engage in a multistakeholder process to establish how ISPs and edge providers interact. The leading thinker on this approach is TechPolicyDaily.com’s own Roslyn Layton. According to her research, of the 50 countries that have adopted net neutrality policies, those which avoid regulatory rules and instead embrace a multistakeholder approach have more edge provider innovation on average than do the other nations.

Second best: Adopt rules provided there is actual evidence of monopoly -- The next best option is for Congress to authorize the FCC to adopt net neutrality rules, but only upon showing that the ISP or edge provider in question possesses and is abusing a monopoly position. There are two key provisions to this approach, and a caveat.

Third best: Rules adopted and enforced unless there is evidence they are not needed -- If Congress is concerned that net neutrality rules are needed now, it can adopt what I consider a third-best option, namely authorizing the FCC to adopt net neutrality rules, but with a requirement that the FCC forebear from enforcing rules where a regulatory impact analysis – styled after the requirements just described – shows that monopoly is absent or that monopoly power is not being exercised even if it exists.

[Mark Jamison is the Gunter Professor of the Public Utility Research Center at the University of Florida]