The FCC stands at the brink of a major achievement — ending a failed two-year experiment in federal micromanagement of broadband and a return to the effective, bipartisan “light-touch” policy under which the Internet has thrived for the past two decades.
Chairman Ajit Pai’s return to deregulation promises to unleash a new burst of network deployment and innovation, throwing off failed regulatory shackles that saw broadband investment drop $2.4 billion in the last two years.
But in a classic case of one step forward, two steps back, the extreme “resistance” armies of the far left are threatening to attack this progress with a rear-guard campaign pressuring state and local governments to undermine the FCC’s deregulatory order.
This obstructionist strategy risks slicing the Internet into a balkanized patchwork of fifty different regulatory regimes and grinding the digital economy to a standstill. The FCC has the power to prevent this disastrous outcome, and it absolutely must do so.
Advocates of limited government are often skeptical of broad claims of federal authority to pre-empt state and local policy. And rightly so -- decades of overreach by Congress and presidential administrations have undermined the core principles of federalism embodied in the Tenth Amendment. The original intent of the Commerce Clause has been stretched beyond recognition by activist judges desperate to justify violations of states’ rights.
But a campaign to restore the original intent of the Commerce Clause still allows -- indeed requires -- recognizing that some forms of modern economic activity truly fit the definition of “interstate commerce,” where the framers expected, and desired, a single national policy to hold sway.
Madison, Hamilton, Jay, and their contemporaries could hardly have foreseen the invention of the modern Internet, but it’s hard to imagine a more perfect example that meets their standard. Every time you fire up a webpage, even your basic web requests are likely to span multiple state (or even international) boundaries.
Imposing a different set of regulatory requirements on each step of this process would be more than just confusing – it would make it much harder for ISPs to expand their footprints across state lines, undermining vital goals of faster deployment, expanded rural service, and increased competition.
History shows that for interstate telecom and data networks, deregulation paired with pre-emption is a winning approach. When wireless networks emerged in the 1990s, Congress expressly preempted states from imposing a patchwork of inconsistent regulations – a decision that led to massive investment in networks and the growth of a thriving, competitive wireless marketplace. Similarly, in 2004, the FCC issued a ruling blocking states from suffocating the emerging new VoIP marketplace.
Despite this clear precedent, anti-business state governments are already chomping at the bit to sink their claws into the Internet. The California Public Utilities Commission (CPUC) recently claimed “independent authority” to regulate broadband, and New York’s attorney general has started enforcing broadband speed disclosure practices that directly contradict FCC rules.
Enough is enough. This “progressive” playbook would actually undermine any hope of progress for the broadband Internet, leaving in its wake a broken Internet governed by an irreconcilable hodgepodge of contradictory rules.
The FCC can avoid this outcome by including in the final Restoring Internet Freedom order a clear statement reclassifying broadband as an interstate information service and establishing a clear national policy of light-touch deregulation overseen by the FCC and FTC.
For the sake of the Internet’s future, let’s hope they do so.
Matthew Kandrach is the president of Consumer Action for a Strong Economy (CASE), a free-market oriented consumer advocacy organization.
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