Policy makers have sought to ensure that Internet access is cost- effective, not unduly discriminatory, and of sufficient quality. To this end, the Federal Communications Commission (FCC) passed the Open Internet Orders and the Restoring Internet Freedom Order. But has the FCC truly succeeded in meeting its goals? This paper argues primarily no. In place of prior regulation, this paper suggests a normative approach in light of antitrust considerations and recommends conduct-focused broadband regulation that addresses these public interest concerns—an approach not unlike the 2015 Open Internet Order. The Open Internet Orders1 and the Restoring Internet Freedom Order are used as source material to arrive at a recommendation because these orders provide valuable insights into what type of conduct produces performance consistent with the public interest, serving as actual test cases for whether these regulations succeed in the objective of effectively regulating Internet service providers (ISPs).
A new conduct-focused regulation or a reversion back to the 2015 Open Internet Order, on its own, is insufficient to further the public interest. The current statute from which the FCC derives its authority to regulate ISPs is whittled with conflicting judicial and executive agency interpretations rendering the distinction between information services and telecommunications services, as applied to ISPs, arbitrary. Yet, how to classify broadband—as either an information or telecommunications service—is a critical question because it determines the scope of authority the FCC has to regulate broadband providers. To avoid further political, market, and public confusion as to the classification of ISPs, Congress must first make a policy decision and answer this threshold question.