Imagine if all 50 states had different laws for regulating the internet. What if some only applied to broadband companies like Comcast and AT&T while others only governed internet companies like Facebook and Google, while still other laws affected all internet companies? The consequences seem obvious—consumers would be confused, and companies would spend significant time and money to comply with competing rules. This will inevitably translate to higher costs for customers, less innovation, and companies diverting resources away from building 21st century broadband infrastructure.
To put it bluntly, 50 different state internet laws won’t provide greater consumer protection. They will sow confusion and slow the progress being made to connect all Americans to high-speed internet and the services those networks make possible.
While 50 different state laws may sound like a far-fetched way to regulate something as essential as the internet, it’s closer to reality than you think. Recently, Washington became the first state in the nation to enact its own “net neutrality” law, and just last week Oregon joined the party. A handful of other states are debating whether they should do the same. We can avoid this maze of competing internet laws if Congress passes a comprehensive solution to the net neutrality squabble.
The current dust-up dates back to December 2017, when the FCC passed an order that deregulated the internet—allowing market forces to determine the future of the internet, not government regulators. The order, called “Restoring Internet Freedom,” made clear that antiquated utility rules originally enacted over 80 years ago do not apply to broadband networks. At the same time, the order preserved transparency rules for ISPs, making them accountable to the customers they serve.
Taking a deregulatory approach to internet governance is common sense, but opponents of the FCC’s order claim that it will “end the internet as we know it.” This is simply not the case.
Unfortunately, some state lawmakers across the country are responding to these overheated doomsday claims with their own net neutrality bills to regulate ISPs on a state-by-state basis. But these state proposals are solutions in search of problems. They ignore the fact that the FCC already requires broadband providers to disclose their open internet practices and has returned authority to the Federal Trade Commission to police any deceptive or unfair practices of ISPs. Furthermore, the FCC made clear that state general consumer protection statutes continue to apply to internet companies, while logically prohibiting separate state laws that attempt to govern how internet service companies offer service. Given all this, court challenges to state “net neutrality” laws are clearly on the horizon.
The problem isn’t just with state policy makers. Attempting to seize a political opportunity, some lawmakers on Capitol Hill are taking a similarly misguided approach. A number of Members of Congress are acting in the name of “net neutrality,” proposing the use of the Congressional Review Act (CRA) to nullify the Restoring Internet Freedom Order. This group of lawmakers wants to use the CRA to re-impose the FCC net neutrality decision that resulted in a demonstrable decline in investment during the brief two years it was in effect.
Because the CRA can be passed in a short timeframe with simple majorities in Congress and includes procedural rules to limit debate, it threatens to shut down thoughtful discussions on how to effectively govern the future of the internet. Worse yet, the action would only cover broadband network providers—subjecting them to outdated rules—while doing nothing to address concerns over other tech companies like Facebook and Google. This is no way to develop a policy that will touch every American and have a significant impact on the nation’s economy.
Lost in the noise about net neutrality is the fact that there is a broad desire to preserve a free and open internet. But this cannot be achieved through quick fixes and legislative gimmicks and an inconsistent web of competing state laws. Instead, Congress needs to come together and craft a comprehensive solution that enshrines clear consumer protections and sparks the innovation and investment necessary for connecting all Americans to a free and open internet.
Anthony T. Clark is a Senior Advisor at Wilkinson Barker Knauer in Washington, D.C. The firm serves as regulatory counsel to broadband service providers.