The Federal Communications Commission just released its plan to restore internet freedom, which will bring back the historical light-touch framework that for twenty years instilled regulatory certainty and propelled over a trillion dollars in investments in better broadband services for consumers. Those investments surged even when the broader economy was limping along, even enabling economic productivity across the economy. During the Obama administration, this pro-consumer, pro-investment approach was interrupted by the imposition of the so-called “Open Internet Order,” a dramatic move to regulate the internet with Title II rules in the same archaic way as the monopoly-era rotary phone system. Such regulation harmed consumers as investment decreased and innovation waned.
Eliminating the Title II rules will reverse this troubling trend. Instead of that heavy-handed regulation, the open internet should be preserved. This change will ensure consumers have unfettered access to internet content and services. Service providers will also then have the freedom to manage their networks appropriately, so that speed and service quality can be maintained for consumers as online traffic continues to dramatically increase. And, as importantly, given that the internet is by its very nature interstate, the Commission should take action to implement a national policy framework for internet services to ensure uniformity across the country.
By design, only through the power of the states was a federal government formed. State control is paramount. However, there is also a clear role for the federal government as the founding fathers envisioned. One such role is to govern interstate commerce with the power provided by the Commerce Clause in the Constitution.
Perhaps nothing is more interstate in its very nature than the internet, a system where the simplest message is broken into pieces and moved by various routes from one point to another across the country. In fact, if there is to be an interstate Commerce Clause at all, then the internet is surely where it would apply. As such, the federal government must define and maintain a uniform federal policy of light touch regulations.
Article I, Section 8, Clause 3 of the U.S. Constitution states that the United States Congress shall have power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The clause is intended as a means to keep overly aggressive states from imposing barriers to trade on other states and their citizens. In this case, state-specific internet regulatory schemes would lead to a decrease in investment, a downgrade in the online experience, and frustrate the goal of greater broadband deployment – the very outcomes that FCC Chairman Ajit Pai is rightfully trying to put in the rear window with his plan to restore internet freedom.