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.
Of course, some absolutely hate the notion of the Commerce Clause, and yet it is specified clearly in the Constitution among the list of powers reserved to the legislative branch of the U.S. government. However, the concern is not unwarranted as a parade of activists has for decades tried to use the Clause as an excuse to pass sweeping legislation of nearly any sort. But true conservatives are correct in understanding that the power is legitimate as written, even while understanding its application is narrow. We know how things work out without it, the Articles of Confederation led to states balkanizing so rapidly and with such detriment that a new constitution had to be drafted.
Without clear FCC action to implement a national framework, the states are poised to carve up the internet into a series of systems, each regulated in its own way, ultimately creating a patchwork quilt that is antithetical to the very nature of the interest we understand. That would make the hard fought victory of rolling back Title II short lived. Plus, this radical uncertainty is the bane of investment and particularly of short and long-term capital expenditure.
The FCC must act to instill the certainty, the permanence of supportive and clear public policy. Doing so will ensure the continued expansion of the internet and its transformative societal benefits to all Americans.
Bartlett D. Cleland is a research fellow with the Institute for Policy Innovation and co-chair of the American Legislative Exchange Council’s Telecommunications & Information Technology Task Force.