On Monday, Montana's Governor Steve Bullock signed an executive order (EO) forcing broadband provides to abide by repealed Obama-era Title II net neutrality rules if they want to do business with the state. It is the first such EO/rule in the nation.
If one reads a little further, however, the EO affects more than just the relationship between contractors and Montana's Department of Administration. To win a contract, an internet service provider (ISP) must not only provide “net neutrality-compliant services” to the state, it must do so for all consumers it serves there, too. Consequently, Bullock's EO blocks interstate commerce, essentially gutting the current FCC's Restoring Internet Freedom (RIF) rule, which is the law of the land.
Though Montana's order will likely be challenged in court, RT reports that if successful “it could be a method adopted by other states and become a national standard like auto emission rules, cybersecurity notification laws, or GMO food labels.”
Perhaps unsurprisingly, California, Washington and New York have all jumped into the fray, parroting similar tactics and proposals to impose state net neutrality regulations onto the borderless Internet.
They are all infirm for four main reasons:
- Though states are generally free to enact reasonable policies governing how they procure private sector services, the artificial limitations which mandate “Internet Neutrality” for state procurement of broadband cheats taxpayers by denying government the best choice of technology to serve the public's needs. Politically-driven ideology – such as Obama's draconian Title II regulation – distorts the marketplace and its efforts to deliver wide-open choice at the lowest cost for taxpayers.
- When the rules get challenged in court, those courts will universally find that their application to the consumer marketplace has been pre-empted by the FCC's new RIF rules, which properly (and soundly) replaced the prior FCC's misguided Title II net neutrality law. Quite simply, the FCC occupies this field of interstate commerce, which the “Montana tactics” unconstitutionally obstruct.
- The “digital divide” in those states will continue to yawn because Obama-era policies stunt infrastructure investment. Industry stats show that while those rules were in effect, that investment fell by billions. This kept disadvantaged markets in the dark, thwarting growth where it was needed most. The RIF rule reverses that debilitating trend, providing greater incentive for companies to invest, build and innovate. It obviates the confiscation that lies at the heart of Obama's net neutrality law, returning the Internet to “light touch” regulation which, before that, so successfully built the 'Net for all Americans.
- The tactics are needless, being already policed by the advance of technology, voluntary industry peer group and standards-setting organizations, thriving intermodal competition, brand management, media reporting, consumer transparency tools, and current federal law enforcement practices – all of which adequately protect consumers and society from bad behavior.
Back-dooring rejected policy at the state level is counterproductive and helps no one.
The Trump FCC has spoken, and it has rightfully repealed Obama's Title II net neutrality law.
Though many believe that net neutrality was never a real problem in the first place, the politics of the matter point to two fora where resolution must be found – Congress and/or the Supreme Court of the United States. It is in one of these two branches where this issue must finally rest. Wild West, "Montana tactics" shall not determine federal communications policy.
Mike Wendy is president of Media Freedom, a 501(c)(3) non-profit organization.
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