California has long been at the forefront of Internet innovation. Now California stands to be the leader in a different way, substituting litigation for innovation.
If legislation pending in the California Senate that would impose state level network neutrality requirements passes, it will almost certainly be struck down by the courts. Net neutrality is an important principle — and it’s exclusively a federal issue. Current federal law prohibits state net neutrality regulation.
Given the trans-border nature of the Internet where traffic originates in one state and traverses numerous others before arriving at a distant destination, there has long been consistent bipartisan agreement that a single national point of regulation is necessary.
Each time the issue has arisen, every FCC Commissioner, Democratic and Republican, has voted to have one regulatory framework at the national level rather than allowing the states to regulate the internet on a patchwork basis.
Indeed, the 2010 Open Internet Order, promulgated under Democratic FCC Chairman Julius Genakowski, preempted the states from net neutrality regulation. Likewise, the net neutrality order promulgated in 2015 by another Democratic majority FCC under Chairman Tom Wheeler contained state preemption, as did the most recent 2017 order adopted by a Republican majority FCC under Chairman Ajit Pai.
Some state attorneys general are suing to overturn the 2017 FCC order that overturned the 2015 order. Even if they succeed, California would still not be able to enact its own net neutrality regulation. The 2015 order’s state preemption would then be back in effect.
It’s time for Congress to step in.
There is a widely shared bipartisan consensus that a set of strong net neutrality requirements should be put in place. The FCC’s 2010 Open Internet Order would be a good starting point for a set of requirements that Congress could adopt.
It should also declare that broadband is an information service. That is the status it had for two decades from the birth of the commercial Internet until the FCC’s 2015 Order, which subjected broadband to common carrier rules.
That two-decade period of predictable regulation was the golden age for Internet investment. It resulted in our communications network becoming the envy of the world.
Following the FCC’s 2015 order subjecting broadband to regulation designed for the monopoly era of rotary telephones, Internet investment plummeted due to the uncertainly over which requirements from the common carrier arsenal the FCC would choose to deploy. Now with broadband’s information services status restored, investment is booming.
One can easily see the simple outline of a bill that could attract support from both Democrats (statutory permanence for strong net neutrality requirements) and Republicans (the regulatory certainty of time tested information services status for broadband).
The net neutrality debate has raged for more than a decade. It’s the longest standing communications policy controversy of this century, and it’s time to bring it to an end by enabling both sides to achieve their highest policy priorities. The legislation could be styled as an “Internet Consumer Bill of Rights” by adding provisions giving consumers information about and the ability to control the information collected about them by websites.
Fortunately, bipartisan Congressional discussions are focusing on ways to achieve these goals. It’s time for everyone in the internet ecosystem to rally around adopting in a statute the core principles of an open internet and strong, uniform privacy protections that apply equally to everyone at every point on the Internet continuum.
Originally published at Capitol Weekly