The decision by the U.S. Court of Appeals for the D.C. Circuit upholding the Federal Communications Commission’s open internet rules deserves applause from everyone who wants to see an expansion of innovation, competition and investment in the internet ecosystem. But ruling that the FCC can’t block state laws and thus allowing rules that differ among all 50 states could spell disaster for advancement of the internet, as web services are offered on a national basis, and many would be disrupted by a multiplicity of diverse and contradictory state net neutrality requirements.
Unless Congress codifies nationwide open internet rules, including the designation of broadband as an information service, we will very likely see continuation of the ping-pong at the FCC between classifications of broadband as an information service and as a telecommunications service. And open internet rules that lack uniformity will only impede innovation, as the internet does not stop at any state line. Both regulatory uncertainty and irregularity will stifle broadband investment at the very time when the nation is slated to make its largest investments ever in 5G technology.
Congress can and should put a stop to net neutrality uncertainty. Congress needs to enact bipartisan legislation that will remove the open internet issue from politics, and enshrine in that law the core principles of an open internet – no blocking of legitimate online content, no paid prioritization, no throttling based on content or unfair discrimination against content. The law should create robust consumer privacy protections that apply to all companies in all parts of the internet ecosystem equally.
As co-chairs of the Internet Innovation Alliance, we stand ready to assist in this effort, which we believe will spur a new era of investment and innovation as the nation transitions to 5G, which will bring exponentially faster speeds and exciting new innovations and products to consumers.
Note, from the ruling: “If the Commission can explain how a state practice actually undermines the 2018 Order, then it can invoke conflict preemption.”