Over the weekend, California Governor Jerry Brown signed a so-called net neutrality bill into law following the Federal Communications Commission’s repeal of Title II regulations. Within minutes the Department of Justice sued California for “unlawfully [imposing] burdens on the Federal Government’s deregulatory approach to the Internet”
The California approach is flawed for too many reasons to count. The interconnected nature of the internet means that the internet is inherently a function of interstate commerce—a function of the federal, not state government. At the inception of the internet, it was agreed on a bipartisan basis that the internet is best served at the federal level, to avoid the creation of a complicated a patchwork of opposing state laws. It doesn’t only make sense for interstate commerce to be regulated at the Federal level, it happens to be the law by U.S. Constitution. It is clear then why the Department of Justice almost immediately jumped to sue the state.
In addition to several of the provisions of the Title II order, including a ban on blocking, throttling and, what they deem “unreasonably” discriminatory conduct, the law would restrict free streaming, a service that consumers actually want. It also includes the general conduct standard which would give government officials broad powers to decide which new services can be introduced into the market.
For nearly two decades ISPs were regulated under a light touch regulatory framework that passed through Democrat and Republican administrations. The internet grew with new innovations such as Netflix and the gigabyte. Although the internet flourished under the light touch approach, under the purview of the Obama administration the FCC in 2015 reclassified ISPs as common carriers under Title II which does nothing for so-called net neutrality principles, but does subject the internet to 1930s regulations for copper wires. There is a growing body of evidence that Title II regulations hurt investment in the market. In 2017 the FCC rightfully repealed the onerous regulations, moving jurisdiction of net neutrality issues back to the Federal Trade Commission.
Instead of states breaking the law and attempting to subvert the FCC ruling, the solution should be to continue to previous precedent of Federal primacy, and allow the Congress to develop a light-touch, flexible regulatory framework for the internet nationwide. The federal government and the FCC cannot let California undermine their efforts. After the fierce debate we’ve had as a nation over the last couple years, it is up to Congress to settle the dispute and pass legislation in support of the FCC’s ruling in order to establish a concrete framework for the states.