Feds shouldn’t echo California’s useless net neutrality law

The FCC stands at a crossroads.

WASHINGTON, D.C. – Do you recall, just over half a decade ago, when a massive, nationwide fear campaign seemingly convinced millions of Americans that the internet would start loading one word at a time? Yet the doomsday predictions about the end of the internet did not come to pass when the Federal Communications Commission (FCC) rolled back the 2015 Open Internet Order that allegedly “provided net neutrality.”

That move sparked widespread outrage despite the fact that it simply brought back the light-touch regulatory framework the internet was built on and has thrived under over the last 30 years. One result of the net neutrality hysteria was passage of the California Internet Consumer Protection and Net Neutrality Act of 2018.

This may all sound like ancient history. As we know, rather than loading one word at a time, the internet has thrived. Speeds increased dramatically while costs decreased. Networks also demonstrated their resiliency, especially during the pandemic. While our European counterparts struggled to manage the massive increase in traffic and usage throughout COVID, the United States was able to avoid the reduction in service and throttling that many European countries faced. Yet despite that, the net neutrality debate has been rekindled by the FCC’s Chairwoman Jessica Rosenworcel.

In a recent announcement, the agency proposed a new rule to re-impose outdated, utility-style regulation on internet service providers (ISPs) – and California’s net neutrality law was at the center of the argument. During her speech, Rosenworcel pointed to the proliferation of state-level laws like the one in California as the reason that the most outlandish predictions about the internet’s demise have not come to pass. But the truth is that net neutrality laws seem effective only because they attempt to solve a problem that never existed.

Despite Rosenworcel’s assertion that “we have open internet policies that providers are abiding by right now, they are just coming from Sacramento and places like it,” there is no evidence to suggest that California’s net neutrality law has had any impact on ISP conduct. Even before the enactment of the law, we did not see the blocking and throttling that net neutrality advocates theorized. Nor have we seen ISPs being taken to task for violations of the California law in the five years since it was implemented.

Rosenworcel has argued that the federal government should adopt the net neutrality laws of states like California. But the FCC lacks authority to implement rules like net neutrality, and Congress is best suited to address the issue through legislation. But even if lawmakers were to grapple with such rules, there is little evidence to support them. Congress has rightly focused on increasing access to broadband instead.

In fact, the bipartisan infrastructure law passed in the last Congress contained the single largest investment in both broadband infrastructure and affordability to date. Yet the administration, through the FCC, is working against its own self-interest by erecting regulatory barriers that will impair broadband deployment. As the official FCC report shows, broadband deployments dropped by 55 percent after implementation of the 2015 Open Internet Order.

Rosenworcel did note in her announcement that “almost half of us lack high-speed service with 100 megabit-per-second download speeds or can only get it from a single provider.” Yet this is a broadband deployment issue, not a net neutrality issue. And Rosenworcel failed to add that this misguided regulatory change will have the opposite of its intended effect and is more likely to reduce speed and competition among internet providers.

Despite overwhelming evidence that supports maintaining the light-touch regulatory framework that has been in place since the Restoring Internet Freedom Order was issued in 2017, the FCC has reignited a fierce battle over who should regulate the internet. Yet even the agency itself seems to sense that it’s on shaky ground.

Despite its usefulness as a buzzword to generate fear, net neutrality isn’t even the focus of the FCC’s action. They are using the familiar term like a wolf in sheep’s clothing, disguising their attempt to impose a regulatory framework that would give them broad new power over the internet. The internet blossomed into an essential part of society because of a framework of permission-less innovation. Yet the FCC is throwing the baby out with the bathwater by seeking to intervene in that thriving ecosystem under the guise of net neutrality, national security, public safety and privacy.

The FCC stands at a crossroads. It can pursue bipartisan priorities and work to bridge the digital divide, or chase ghosts by threatening to implement a federal version of California’s unnecessary net neutrality law – imperiling future broadband deployments. Continued fixation on an unnecessary partisan project when the real need is getting Americans connected benefits neither the FCC, the Biden administration, nor the people whose access to broadband hangs in the balance.

Jonathan Cannon is policy counsel for the R Street Institute’s technology and innovation team. Canyon Brimhall is the senior manager of federal government affairs at the R Street Institute