For Federal Communications Commission (FCC) Chairman Ajit Pai, restoring an open internet has been a long time coming. Since his days as a dissenting FCC Commissioner during the Obama administration, Pai has remained steadfast in his commitment to replace the recent government regulatory stronghold over broadband services with the prior light-touch framework, which had unequivocally proven to foster extraordinary innovation and economic achievements.
As Pai explained in his 2015 dissenting statement to the FCC’s Open Internet Order, the internet is arguably the greatest free-market success in history, thanks in large part to the Telecommunications Act of 1996. Central to the bipartisan legislation was the principle that as a policy the U.S. must “preserve the vibrant and competitive free market… unfettered by Federal or State regulation.”
Fifteen years after the Telecommunications Act’s passage, the FCC traded its free-market values for needlessly enhanced government control, most notably after the White House released a YouTube video imploring the FCC to implement Title II regulations, ostensibly compromising the agency’s independence.
With Pai now at the helm, the FCC is poised to restore a deregulatory framework for broadband internet access service, but this opportunity does not come without significant risks. While the agency can make great strides on the federal level, it is equally important that the FCC use its lawful authority to preempt state and local broadband laws which might derail the FCC’s achievements.
Unlike some FCC matters which primarily concern policy wonks and technicians, net neutrality is a topic of fierce public debate. The issue has engendered viral YouTube videos, online protests involving thousands of websites, and countless calls from tech giants and left-leaning lawmakers encouraging internet users to contact the agency with their open internet concerns individually.
Leaving aside the fact that it’s neither efficient nor necessary for the FCC to conduct a straw poll of consumers without subject matter expertise as part of its decision-making process — given the current political climate — it is without question that advocates of enhanced government control dissatisfied by the FCC’s broadband deregulation will look to states as alternative sources of government control.
This comes at a time when Democrats on the state level may be gaining momentum with recent wins in Virginia and New Jersey. Additionally, over the past year legislators in nearly 30 states introduced bills to impose state-specific privacy requirements on Internet Service Providers (ISPs). These state efforts are in direct response to the repeal of another power grab from the Obama administration; this one focused on unbalanced online privacy rules.
A lack of federal broadband regulation uniformity would also create needless difficulty for international businesses. Language challenges notwithstanding, allowing each of the 50 states and 16 territories to pass their regulations on privacy, security, and net neutrality would create needless chaos and confusion and would seem especially nonsensical considering the 30 countries in Europe follow a uniform guideline.
Despite the loud opponents to broadband deregulation, the FCC has strong legal authority to move forward with their plan.
First, Section 706(a) of the Telecommunications Act expressly directs the FCC to promote broadband deployment. But, even if Section 706(a) does not confer rulemaking authority, it imposes a mandatory legal obligation upon the FCC to advance broadband deployment, thus authorizing the agency to preempt state laws that threaten its ability to achieve that goal. Second, Section 153 of the Communications Act codifies the FCC’s initial light-touch framework for “information services,” which includes broadband Internet service providers, strengthening the FCC’s authority to preempt state laws that undermine the Act’s rule of light regulation for information services. Third, with respect to mobile broadband operators, Section 303 of the Communications Act authorizes the Commission to “[p]rescribe the nature of the service” provided, enabling preemption of state mobile broadband laws that would contradict federal policy.
Additionally, Section 230(b)(2) of the Communications Act provides that the FCC should “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation. At a minimum, Section 230(b)(2) confirms that it is reasonable to interpret the aforementioned statutory provisions as authorizing FCC preemption of state broadband laws that contradict federal objectives.
Importantly, the FCC has not hesitated to use its statutory authority to preempt state laws in furtherance of congressional mandates, particularly in the area of interstate services within its exclusive jurisdiction, and courts have consistently upheld the Commission’s authority to do so. Moreover, Congress intended the FCC to be a “centralizing authority” so that it could more effectively execute its policy goals for “interstate and foreign commerce in communication by wire and radio.” For nearly 50 years, the D.C. Circuit has also held that the Communications Act must be interpreted “in light of the needs for comprehensive regulation and the practical difficulties inhering in state by state regulation of parts of an organic whole…”
Creating a uniform national framework for broadband that promotes investment and innovation is not only statutorily supported sound policy, it’s also consistent with constitutional traditions of interstate commerce and federalism. Federal courts have consistently held that the Commerce Clause, by empowering Congress to regulate interstate commerce consequentially prohibits states from passing laws which “burden” interstate commerce. Here, Congress granted the FCC authority to regulate broadband, thus also authorizing federal preemption of state laws that would undermine federal broadband objectives.
(Note: The views and opinions expressed by the author do not imply endorsement by the Federal Communications Law Journal.)
