Written to commemorate the twenty-fifth anniversary of the Telecommunications Act of 1996, this Essay looks forward at possible settlements regarding the nagging question of whether and how best to regulate Internet service providers. Rather than start from the standpoint that this or that policy, such as net neutrality, is good or bad, I ask more broadly who should regulate ISPs and under what general framework. I assess and critique various frameworks, including reliance on markets and antitrust; state-level regulation under a federal Title I regime; various frameworks set forward in Republican sponsored bills; and the Save the Internet Act. I argue that all of these frameworks suffer from numerous drawbacks, such as the lack of the ability to set clear rules (as with antitrust) or insufficient flexibility (as I argue besets both Republican and Democratic-sponsored bills, in differing ways). I suggest that the legislative proposal with the most promise would be roughly based on the legislation enacted to govern the regulation of CMRS in the early 1990s. This would bring ISPs within the general Title II framework while perhaps taking certain things–such as ex ante price regulation and many forms of state-level regulation–off the table. It would also preserve the FCC’s flexible role going forward, and re-channel the FCC’s inquiry toward the policy-focused forbearance factors and away from endless scholastic debate about whether ISPs really “are” telecommunications carriers.
Deacon, Daniel. "Institutional Considerations for the Regulation of Internet Service Providers." Federal Communications Law Journal 74, no. 2 (2022): 111.