Today, the DC Circuit Court of Appeals largely validated the Federal Communication Commission’s (FCC) “Restoring Internet Freedom Order,” which restores the longtime “light touch” regulatory approach to the Internet and overturned the Obama administration’s heavy regulation.
The court rejected most of the challenges to the FCC’s decision. Most significantly,
- The court upheld the FCC’s decision to reclassify broadband as an information service rather than as a telecommunications service, which protects the internet from monopoly-era telecom regulations;
- The court upheld the FCC’s decision to relieve mobile wireless broadband of heavy regulation;
- The court agreed with the FCC that its moves would likely lead to more broadband investment; and
- The court agreed that any potential harms could be addressed with existing tools, including by the FTC and by antitrust law.
Of course, markets, being smarter and faster than government, had already rendered their decision months ago. Private sector investment in networks is up significantly since the FCC overturned the Obama-era regulations, average broadband speeds are up, and wireless companies have been clamoring for more spectrum so they can expand their networks and provide new services to consumers.
For now, the court decision puts an end to a short and misguided period in the history of internet policy. Except for a few months near the end of the Obama administration, the federal government has wisely taken a light touch regulatory approach to internet policy, and the result has been an explosion in incredible services to internet users, as well as an ever-growing number of people who have access to broadband. So we’re grateful that the court has largely validated this approach.
Unfortunately, there is nothing stopping a future FCC from making the same mistake and going the way of regulation all over again. That’s why, ultimately, Congress needs to pass legislation that locks in a light touch regulatory approach but preserves the authority of the FCC, the Federal Trade Commission, and the Justice Department to deal with bad actors.
We disagree with the court in its decision that the FCC did not have sufficient authority to pre-empt state regulations over the internet. We’re definitely federalists, but the internet is inherently interstate in nature, and the Commerce Clause gives the federal government an active obligation to prevent states from erecting regulatory barriers against interstate commerce. If states try to regulate broadband with net neutrality-style regulations, we don’t expect them to survive a Commerce Clause challenge.
All-in-all, a great day for markets, ecommerce and internet freedom.