The Record Speaks for Itself—America’s Networks are Thriving. The early days of the coronavirus pandemic represented one of the largest ever tests of the strength and resiliency of America’s internet networks.  As the virus spread and people shifted to home for work and school, internet networks here and abroad faced an unprecedented surge in traffic.  Almost two-thirds of Americans worked from home and a large majority of students were directed to online educational resources, leading to an increase in internet traffic of more than 20 percent.  

Signs of stress appeared for internet networks in other parts of the world.  Regulators in Europe, for example, directed some streaming services to reduce their video quality and otherwise reduce bandwidth utilization to ease the strain placed on networks.  Disney+ delayed the launch of its services in France in response to concerns of the French government regarding the launch’s impact on internet networks.  But here in America, our internet networks had the capacity to not only meet, but surpass, expectations.  Even where there were usage spikes, regulators did not need to ease the strain of any internet use.  And continued monitoring demonstrated that networks had capacity to spare, despite a step-change in usage.

Today’s Regulatory Regime Has Set Providers Up for Success. Since early 2020, not only have America’s networks continued to meet user demand, but providers have worked to increase network performance.  Today, wireless download speeds are twice as fast as they were before the pandemic, and fixed download speeds are up by 30 percent.  Internet providers are also deploying services and infrastructure at a record-breaking pace.  For example, by the end of 2020, more than 417,000 cell sites were built and operational, an increase of 35 percent since 2016.  And in just the last two years, more cell sites have been built than in the previous seven years combined.

Contrary to the narrative of some naysayers, extraordinary results like these come from a light regulatory touch, not an iron fist.  The regulatory environment created following repeal of the Obama-era net neutrality rules in December 2017, coupled with streamlined infrastructure siting rules, have enabled internet providers here in the United States to heavily invest in their networks and deploy services with record-breaking speed.  Since 2017, wireless providers have invested nearly $112 billion in the United States.  And investment in 2020 represented 18 percent of the world’s total mobile capex—even though the U.S. has just 4.3 percent of the world’s population and 5.9 percent of the world’s mobile connections.  Fixed broadband providers have also made skyrocketing investments in their networks of about $70 to $80 billion in each of the last few years.

Changing Regulatory Horses Midstream Risks America’s Leadership in Next-Generation Services.  Despite this robust network performance and continued investment, the conversation pushing potential regulatory experimentation under a Title II regime continues.  Putting aside whether robust Title II net neutrality can somehow deliver the same kind of consumer welfare as the prior regulatory regime delivered (hint: it cannot for multifarious reasons), a repeat experiment with Title II is nothing more than another round of regulatory ping-pong.  Even if the broadband industry is prepared to hold its nose and accept some, but not all, Title II strictures—provided that forbearance permits the FCC to treat Title II like a buffet of regulatory options—an FCC decision will be subject to legal challenges. Underwhelmed public interest groups and activist state attorneys general who expect more command and control than what would be provided by the ultimate compromise order may rely on FCC forbearance to argue that the Commission had not ‘occupied the field’ on the regulatory topics from which it forbore.  Even if those arguments were ultimately unsuccessful, Americans would be guaranteed the investment-chilling threat of a 50 state regulatory regime for some time to come.

Another Title II experiment could not be more ill-timed from a technological perspective, either.  When the first Ford Model T rolled off the line, promising with it a revolution in personal mobility, it was not the moment to observe that the Flocken Elektrowagen might vouchsafe a more carbon-friendly future.  And it was certainly not the moment to, for instance, declare by regulatory fiat to whom cars must be sold, under which terms, and with what they must be equipped.  People had places to go and society was in no position to thumb its nose at the ready-at-hand technology  ushering in a fully new age of travel. 

Today, next-generation services promise an explosion of digital-divide-bridging connectivity.  Carriers have begun to light up C-Band 5G this month, representing the most successful spectrum auction in U.S. history, generating revenues from spectrum equal to roughly twice the $42 billion of state infrastructure subsidies for broadband promised in the infrastructure bill.  And just as mobile-first connectivity promises to support Americans arguably underserved by traditional wireline providers in urban areas, Space X—just one of many innovative new broadband satellite providers operating in low-earth orbit—has exited beta testing of its Starlink service and begun service provision in earnest.  As a result of these long-term, capital-intensive investments, many customers in both urban and rural America—some for the first time—will soon have access to bona fide broadband connections.

It is only just now, in 2022, that the technological promise of these twin technologies is creating a “Model-T moment” for broadband connectivity across the country.  Revisiting a Title II regulatory regime would stand athwart this moment by creating regulatory uncertainty, guaranteeing a pullback of capital just as new technological and business models of connectivity are proven.  The FCC shouldn’t do that.

And to weaken the United States’ 5G position now is the same as writing a check to China.  Carriers are already laden with regulatory uncertainty.  To add more regulation would compound the uncertainties, which affects where capital seeks a risk-adjusted return.  But as surely as the U.S. would guarantee pullback from the regulatory uncertainty introduced by a Title II order at the FCC, China would press ahead in establishing global dominance in 5G.

So instead of wasting its time on another Title II retread, the FCC should continue to press forward and direct its resources to other more fruitful efforts.  The FCC must complete broadband mapping in order to deploy 5G Fund and RDOF II dollars to close the digital divide.  It must further free midband spectrum, and work to ensure that the spectrum we’ve already allocated is efficiently used.  It can continue to streamline infrastructure deployment at federal, state, and local levels, and ensure that the next generation of wireless infrastructure remains secure.  It can make our satellite rules more competitive with other jurisdictions, while at the same time making material progress in mitigating orbital debris.  These are potentially bipartisan initiatives, all of which rate as likelier to deliver material benefit to the American people than another Title II order.

 

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at [email protected].