Voters deserve better than net neutrality politics

In the final month of the midterm season, the politicization of serious policy issues is at a fever pitch including internet policy that from 1996-2015 reflected bipartisan agreement. Many states and candidates are trying to get new, younger voters to the polls through a variety of misleading tactics including peddling that overregulation is the only way to save the free and open internet as we know it. These politicians also want to create state-specific internet regulations, including recent efforts in California that blatantly violate federal policy and impede the ability to create a single, navigable marketplace for internet innovation and equal protections online for all Americans regardless of location.

Left and right wing vote badges are a symbols of liberal and conservative political campaigns designed to heighten differences between competing parties. But such distinctions obscure that effective, lasting policy solutions incorporate the best ideas of both sides.

The Tactics

State-level political actors have amplified these politics through a variety of instruments including gubernatorial executive order, state legislation, and/or lawsuits by state attorneys general.  On the same day that California signed its own internet law, the Department of Justice sued to block its implementation, noting that California’s law is preempted by the FCC’s deregulatory policy. It is illegal for a state to regulate the internet and defy the FCC’s preemption authority, but state actors persist nonetheless because of the political value they earn by purporting to “protect the internet.”  Even The Washington Post Editorial Board called out California for going too far and called on Congress to resolve the issue.

Another tactic is abuse of the Congressional Review Act (CRA), an obscure, little-used statute that Congress can pass to reject regulations adopted by federal agencies. Passing a CRA measure is by no means easy. It requires majorities of both houses and the President’s signature. In addition, the explicit CRA statute applies only to agency rules, but the CRA attempts to restore an order. Rules and orders are not legally the same. There is also a procedural issue of whether the 2015 FCC duly informed Congress of the Open Internet Order, which could potentially make the entire order moot for CRA purposes. Ongoing legal challenges against the 2015 order, including seven petitions at the Supreme Court, could also terminate the policy.

Why is internet policy is federal policy

Because of the global nature of the internet, Congress deemed the need for a single national policy to govern it, which is stated explicitly in the 1996 Telecommunications Act. It is neither practical nor tenable to require a person to obtain a new driver’s license to drive in a new state or a new high school diploma to work in another state. Similarly, state-level internet regulation frustrates the current seamless digital market in which consumers can enjoy online content and services, regardless of which state it originates from. Consumers would understandably reject 50 different sets of requirements to connect online.

Even if some states succeed in promulgating their own internet policies, the question is how long these policies will withstand legal challenge in state and federal litigation. States will likely be too overwhelmed to defend their internet policies when they are fighting legal battles on dozens of other issues.

The point of states making their own internet policy may not necessarily be to enforce such rules but to gain symbolic victories before an election. For practical purposes, most states do not necessarily want to enforce their rules, and most of their public utility commissions are not equipped or situated to do so.

Moreover, it may be technically impossible to enforce these rules. State regulators can only regulate commerce that takes place within the state’s borders. Thus, the state regulator would have to certify that the internet service is intrastate, originating and terminating within its state. Regulators would have to look into the internet packet to see its origin and destination, an impossible feat without a major investment in expensive deep packet inspection technology. Not only would the vast majority of internet streams fail to meet intrastate requirements, but state residents would be subject to surveillance by their state regulators under the premise of keeping the internet “free and open.” The end game is more likely to use the premise of the state law to add a new tax to broadband bills.

Conclusion

The Internet is inseparable from American life. America’s internet and larger tech economy comprises one third of the world’s digital market. It comprises almost 10 percent of our GDP and employs 12 million Americans, either directly or indirectly. Additionally, at least 80 percent of Americans use the internet in some way, whether to stay in touch with family and friends, learn, shop, or be entertained.

This success is largely due to a bipartisan consensus of light touch regulation that supported innovation, investment and enterprise across the ecosystem from 1996-2015. It ensured there was a single market for all innovators and common rights and protections for all Americans regardless of location. In order to continue this growth and prosperity, Congress needs to enact bipartisan legislation. It’s time to put this politicized net neutrality campaign to rest, and for businesses and consumers across the country, our leaders need to enact thoughtful legislation together.

Originally published in Forbes.