The fight over net neutrality isn’t over

Last week, the D.C. Circuit Court of Appeals upheld the Federal Communications Commission’s 2017 repeal of Obama-era net neutrality rules. President Trump took a victory lap, tweeting that the decision was “A great win for the future and speed of the internet.”

However, defenders of a market-based, light-touch approach to the internet shouldn’t celebrate too quickly. The ruling leaves open the possibility of states enacting their own forms of net neutrality, ensuring that this seemingly endless policy debate will continue.

While the ruling broadly upheld the 2017 order, the court sent back a number of provisions including the FCC’s assertion that it could preempt net neutrality legislation on the state level. At present, 34 states have introduced some sort of net neutrality legislation.

California famously passed the most comprehensive of the state proposals in 2018, which was challenged by the Department of Justice pending the court’s ruling. The decision now opens the door for California’s law to be enacted, and undoubtedly more states will follow. As such, net neutrality could spread across the country at the very least in some states, which inevitably raises questions of interstate commerce that will invite more lawsuits.

In addition to more state legislation and lawsuits, there is also the threat of a future Democratic administration reinstating the Obama-era net neutrality rules. This ping-pong policymaking creates great regulatory uncertainty, with internet service providers uncertain what the rules of the road are for the foreseeable future.

For better or for worse, the net neutrality debate likely won’t be solved until Congress passes legislation. With a split House and Senate, that is unlikely to happen anytime soon — particularly since Congress currently seems occupied with the ongoing impeachment inquiry. The House passed net neutrality legislation in April, but the proposal was dead on arrival in the Senate.

In short, last week’s ruling is not the final nail in the coffin for net neutrality.

This is a shame, because net neutrality is a solution without a problem. FCC Chairman Ajit Pai put it best in a 2017 Wall Street Journal op-ed:

Indeed, broadband investment has increased by $3 billion since the repeal of net neutrality to $75 billion in 2018. And the “wild west” of the internet that net neutrality proponents warned of has yet to come to fruition. After all, any anti-competitive activity from internet providers would face a challenge from the Federal Trade Commission, as well as a consumer revolt.

Yet until Congress takes some sort of action, the fight over net neutrality will continue to divide the country. Let’s hope for sanity’s sake that lawmakers can reach an agreement soon to keep government’s hands off the internet as much as possible.

Casey Given (@CaseyJGiven) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the executive director of Young Voices.