On Sunday, California’s governor, Jerry Brown, signed Net Neutrality legislation into law. Its progressive supporters rejoiced, calling the new law the “gold standard” for preventing ISPs from throttling, blocking, prioritizing and zero-rating what flows over their networks.
Sadly, this is not a one-off occurrence. California’s efforts are part of a broader state and federal RESIST strategy to reinstate Obama’s Net Neutrality rules, which were repealed by the present FCC late last year. A small handful of other states have passed similar laws or executive orders, too; California’s is the self-proclaimed “strongest” of these.
Almost immediately after its signing, the DoJ started the process of suing California for its law, with AG, Jeff Sessions, pointing out:
“Under the Constitution, states do not regulate interstate commerce—the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy…”
Added FCC Chairman, Ajit Pai:
“…The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area…”
The upshot of this is that the court will likely rule (in a year or so) that Uncle Sam preempts California’s law, making it illegal.
A welcome, though unintended, outcome of this is that the DoJ suit also undermines a keystone in the zealots’ RESIST strategy: A pending Congressional Review Act resolution, which seeks to overturn the FCC’s repeal of Net Neutrality noted above. Session’s suit makes certain that even if the CRA makes it to the President’s desk, he will veto it. So, the CRA is DOA.
But don’t break out the champagne yet. Those pushing the Net Neutrality RESIST strategy aren’t about to just give up.
Though various versions of compromise legislation, which could resolve the issue once-and-for-all, have sat on the table for years, congressional Democrats have never been interested in passing anything other than “strong” Net Neutrality (whatever that means). Of course, that won’t happen with President Trump in the White House, even if Dems pick up the House and Senate in the mid-terms. So, get ready for more delay and shenanigans from the Democrats until at least 2020 to keep stoking the “need” for a return to Obama Net Neutrality.
Surprised? Don’t be. Democrats don’t want to see a quick end to the fake problem. While national polls show that Net Neutrality is AWOL for real Americans, Democrats believe it’s a potent campaign issue to generate support among its purported future base – millennials. If you “solve” it, you take away a powerful vote-getter, at least as they see it. So, there’s every incentive to keep the issue alive and in-play until they control the White House or have comfortable margins in Congress to pass legislation.
This does not need to be. Moreover, these politics are harmful to our economy.
As Democrats know, legislative Net Neutrality has never been necessary to boost competition, keep the Internet “open,” or to prevent consumer harm. From 2005 until 2015 – when “light touch” regulation was the rule, and Net Neutrality as a law was absent – over a trillion dollars of private network investment flooded into building the Internet ecosystem. It created the “open” Web that we know and love today.
Net Neutrality zealots want none of this. Such regulation cannot be exploited to expropriate private property for public purposes, restrict “undesirable” speech so that it is “good,” or subsidize and protect Silicon Valley billionaires. It’s “strong” Net Neutrality or nothing at all.
The impasse is untenable.
While legislative Net Neutrality isn’t needed to keep the Web “open,” some sort of compromise is needed now to end the nigh 20-year “debate” and the paralyzing agency ping-pong, which has both sucked the air away from more important policy matters and threatens America’s Internet leadership.
Call it whatever you want, but Congress must step in and pass legislation that protects network providers from government confiscation; is economically sustainable, rational and promotes investment; and ensures that consumers and competition are not harmed by unreasonable behavior from any player in the Internet ecosystem.
Mike Wendy is president of Media Freedom, a 501(c)(3) nonprofit organization.
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