By Elliot S. Tarloff

After over a decade and hundreds of millions spent on court battles and lobbying efforts, we have reached a stalemate on the question of how to federally regulate internet service providers (ISPs). Advocates of “net neutrality” have been stymied by court decisions de-fanging the FCC. But proponents of “light-touch” regulation have failed to preempt—that is, federally displace—aggressive state net neutrality laws. And because ISPs cannot differentiate service on a state-by-state basis, the result is that a few states have imposed nationwide regulation without any role for the federal regulatory body.

This is absurd. But perhaps this impasse could be put to good use. Federal regulation of ISPs would make an interesting test case for a promising tool of depolarization. Specifically, the FCC should conduct a “deliberative polling” proceeding to create a report to Congress, recommending a consensus-based framework for ISP regulation. The FCC should seek informal, ex ante commitments from public interest groups and industry alike not to lobby against any legislation modeled on the report. A successful result might be enough to put the net neutrality wars behind us.

The FCC first adopted net neutrality rules in 2010, prohibiting ISPs from blocking access to lawful content and from engaging in unreasonable discrimination like paid prioritization. Verizon challenged the rules, arguing that they imposed “common carrier” requirements on ISPs. That was unlawful, Verizon claimed, because the FCC had classified internet service as an “information service”—which cannot be subject to common carriage—not a “telecommunications service”—which can. The U.S. Court of Appeals for the D.C. Circuit agreed.

At that time, the FCC’s classification (like any agency’s interpretation of an ambiguity in its statute) was subject to Chevron deference: The FCC could classify internet service either way—and could change its classification—and federal courts would defer to the agency’s interpretation. So in 2015, the FCC re-classified internet service as a “telecommunications service,” subjecting it to all of Title II of the Communications Act, including requirements beyond “no blocking” and “no unreasonable discrimination,” except those which the FCC exempted through its “forbearance” authority.

Then, in 2017, the FCC re-re-classified internet service as an information service, exempting it from all Title II requirements. In that decision, the FCC also claimed that any state regulation of ISPs should be preempted. The D.C. Circuit deferred to the agency’s re-re-classification but invalidated the preemption, finding that, absent Title II, there was no authority for such displacement. In 2024, the agency re-re-re-classified internet service, re-adopting the prior no-blocking and no-discrimination rules, forbearing some Title II requirements and imposing others.

Meantime, in a separate case, about a separate agency, the Supreme Court eliminated Chevron deference. Going forward, federal courts, not executive agencies, must resolve statutory ambiguities, meaning, here, that the next reviewing court would have to classify internet service once and for all. Enter the U.S. Court of Appeals for the Sixth Circuit. In reviewing the 2024 re-re-re-classification, the court held that internet service, absent congressional action, forevermore must be an information service—a holding that numerous judges, including Justice Antonin Scalia, had previously rejected. The result is a true no man’s land: Internet service cannot be subject to any Title II requirements, but the FCC lacks authority to preempt state regulation to the same effect.

Each side has something the other wants—enforceable rules on the one hand; preemption on the other. But Congress has been nowhere to be found. And since the FCC now lacks the substantive tools to break this impasse, perhaps it can do so utilizing its broad procedural affordances. It should conduct a good-faith deliberative polling proceeding, based on the work of Stanford professor James Fishkin, to develop recommendations to Congress about how to regulate ISPs.

Using best-in-class statistical and polling techniques, and consistent with its obligations under federal law, the FCC first would recruit a representative random sample of the American public, reflecting national diversity across identities and viewpoints, to serve as “participants” in the proceeding. The FCC would provide those participants with an initial questionnaire about which, if any, net neutrality and Title II requirements to impose—using the 2015 and 2024 orders as the “menu” of requirements for consideration—as well as whether to preempt state laws. At this point, the important thing would be to establish the participants’ baseline; they would not need to have any background knowledge. The agency would then provide the participants with written briefing materials, prepared by advocates on each side. The participants then would join a series of mediated small-group and plenary deliberative sessions, during which they would discuss each proposed requirement and pose questions to experts and advocates. After these sessions, the FCC would provide the participants with the same questionnaire, to see how opinions changed. The FCC could then formalize any majority recommendations as a basis for legislation in a report to Congress.

Regular people, learning and talking, not gold-plated filings and astroturf campaigns, might finally broker the peace.

Fishkin has validated the efficacy of deliberative polling in both controlled and real-world settings. His results show that deliberative polling reduces polarization on a variety of issues—from immigration to climate policy. There is no reason to think net neutrality would be any different. Moreover, people who participate in deliberative polling take the process seriously. Telecom policy may seem arcane, but participants would bring their common sense and everyday judgment to the briefings and expert presentations. The fact that participants often moderate their views through deliberative polling processes demonstrates that people show up ready to listen.

Additionally, this process should be fairly easy for all involved. After multiple classification proceedings over the last 16 years, the FCC, industry, and public interest groups have the fodder that they would need to develop appropriate, updated briefing materials and expert presentations.

Could the FCC be trusted to conduct a good-faith proceeding? Fair question, these days. But this proceeding could give a new FCC chair a perfect opportunity for a fresh start and a mechanism to put a more expressly partisan chairmanship behind us. Moreover, by statute, the FCC is supposed to be a multi-party regulatory commission—i.e., Congress has made clear that there generally should be at least one commissioner from each party. Its structure is therefore ideal for conducting a fair deliberative polling experiment; the commissioners can keep each other honest.

What cannot be known is where the participants would land. But it is precisely the uncertainty over which arguments would carry the day that could garner buy-in from industry and public interest groups not to oppose any legislation modeled on the outcome. If each side is persuaded by the merits of its arguments, it should be willing to make that commitment.

We are living in a highly polarized period that sometimes makes effective governance seem impossible. The wars over net neutrality exemplify this. The two parties cannot agree about how, or whether, to regulate ISPs, and the FCC has spent years classifying, re-classifying, and re-re-classifying internet service, only to wind up without authority to impose substantive requirements or to preempt state laws that do.

Rather than living in this judicially created no man’s land, the FCC should take up net neutrality yet again—this time, as an opportunity to conduct a procedural experiment. A deliberative polling proceeding about net neutrality could produce convergent views, which could then be reported to Congress as the basis for a bipartisan, democratically legitimate, and durable solution to what has been an intractable problem. And, if this tool can be used to solve one such problem, perhaps it can be used to solve others as well.

Elliot S. Tarloff is a lawyer in Washington, D.C. He formerly served at the Federal Communications Commission, most recently as a senior legal advisor and the agency’s senior official for privacy.