Forget the Courts -- the Congress Must Resolve "Net Neutrality"

The U.S. Appeals Court for the District of Columbia will hear oral arguments this Friday in the never ending "net neutrality" saga. There will be predictable hype and scare mongering by those who support the rules as currently constructed, arguing that if the rules passed this year by the Federal Communications Commission (FCC) that rendered the Internet a public utility are overturned, the Internet will cease to exist. Much of what is said by detractors of the law - that investment will slow and access rates will level off - will be equally predictable (albeit rooted in far greater truth).

After all, with this being the third attempt by the FCC to instill this doctrine - the idea that everything on the Internet should travel at the same speed, whether it's the remote monitoring of a cardiac device or a video of a cat - predictability is, well, predictable.

Yet a less anticipated and far better option, is feasible in Congress, even if it has been overshadowed the legal hoopla. Those seeking a more balanced, flexible set of rules should direct their attention that way - particularly towards Democrats that hold immense bargaining power. Should bipartisanship reign in the Capital, President Barack Obama could stamp his legacy in Pennsylvania Avenue as a champion of the open Internet.

Let's consider the state of play.

The Communications Act of 1934 says phone companies are like public utilities and should be strongly regulated. But the 1996 Telecommunications Act, championed by President Bill Clinton, labeled the Internet as an "information service" that should be lightly regulated. That seems like a good decision: The Internet has grown spectacularly in this unregulated format.

But in early 2016, FCC Chairman Tom Wheeler said that to achieve "net neutrality," the Internet must be a public utility. He said that the Web should be regulated much like the Ma Bell telephone companies of generations ago. Why this sudden turnaround?

At issue is "paid prioritization" - whether content that so wishes can travel the Internet's backbone maze faster than others. The same court that will hear arguments Friday ruled in 2014 that FCC didn't have the right to ban this practice. But it would have that right if it "reclassified" the Internet as described above.

So Wheeler did so behind a partisan vote and his independent agency will now defend the rules. What happens is anyone's guess, but Congress can still choose a better path - one that would expressly ban the blocking, slowing or prioritizing Internet traffic without the blunt force of utility-style laws.

This should be supported - particularly by Democrats - for a number of reasons.

First, despite misguided enthusiasm for utility laws by some factions of the netroots movement, the Internet is clearly not the same as the phones of yesteryear. The success of the Internet under the past regime and the stagnation of the stagnation of the phone are living proof.

Next, evident in the drastic shift this year, the FCC has a lot of freedom to enact regulations - even if they must defend them in court. And if Republicans capture the White House in 2016, that means a Republican Chairman could easily overturn the laws, and net neutrality advocates will be left with nothing.

A Congressional compromise, in contrast, could be the law of the land tomorrow, period, full stop, with no question of its constitutionality.

And last, I am of the view that legislation is always better than regulations, even in a gridlocked Washington. Compromise and action by Congress on net neutrality would eliminate fickle responses and show that our elected officials can actually achieve wins. It could even reignite the efforts of Commerce Committee Chairmen - John Thune (R-S.D.) in the Senate and Fred Upton (R-Mich.) in the House - to advance a much needed overhaul of communications laws old enough to drink today.

By working with Republican majority to enact a net-neutrality law now, Democrats have an opportunity to set rules for a fair, open and competitive Internet well into the future. Congress can do this in a way that does everything that Obama and the Federal Communications Commission want to do without the risk and delay.

Friday's spectacle may grab headlines, but the focus should be in Congress. It is their turn to act.

*In addition to his post as a visiting fellow at the Progressive Policy Institute, Ev Ehrlich is the President of ESC Company, a Washington, D.C.-based consulting firm that addresses economic and business problems for a diverse set of clients, including unions and technology and telecommunication companies.