Tami Howie: Only Congress Can Regulate the Internet

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It’s a no-brainer to support protecting the rights of consumers to unfettered access to the wide-ranging services and sites offered on the internet. But, similarly, states like Maryland must ensure that the robust internet infrastructure that fuels our digital economy continues to advance and make Maryland an attractive place to do business.

There is a way to accomplish both, but the current furor among advocacy groups, state legislators and governors seeking to impose state-by-state solutions, some of which are inconsistent with other state solutions, is not the best approach. While some states have chosen a “go-it-alone” approach, others like Virginia, understand that regulating the internet on a state-by-state basis is not the best policy approach -- particularly as is relates to their state’s economic competitiveness in a digital age that promises such things as automated vehicles, telemedicine, smart cities, and 5G technology.

In Maryland, four different bills in the General Assembly would prevent the State of Maryland from doing business with any internet service provider that does not agree to a laundry list of new state regulations that attempt to protect consumers’ online experience. This is a noble objective intended to pressure internet providers to continue providing consumers unfettered access to internet content and services.

However, such local measures cannot solve this concern. Only Congress can step in and fully protect consumers by developing a framework that regulates the entire Internet industry in a comprehensive, federal manner.

While all the state actions to date may be well intended, all of them miss a fundamental point: The U.S. Constitution’s Commerce Clause clearly gives Congress the sole right to regulate interstate commerce.

Given that internet service is an inherently interstate (and often international) service that continually passes across numerous state borders, the power to regulate internet activity lies on Capitol Hill.

Imagine the confusion if Pennsylvania, Maryland and Delaware took different approaches to regulating internet service. How would an internet service provider comply with three different approaches for what is essentially the same service in each state? We’d have a mid-Atlantic regional mess to sort out with no one state in a position to impose its will on the others. Virginia has already rejected this approach, but let’s hope lawmakers in Maryland come to the same conclusion.

We have a federal system to regulate interstate commerce for all the states and the internet clearly falls into that category.

As the FCC has made clear, “[A]llowing state or local regulation of broadband Internet access service could impair the provision of such service by requiring each ISP to comply with a patchwork of separate and potentially conflicting requirements across all of the different jurisdictions in which it operates.” That is why the FCC expressly preempted “any state or local measures” – whether legislation, regulation, or litigation – that would “effectively impose rules or requirements that [it] repealed or decided to refrain from imposing . . . or that would impose more stringent requirements for any aspect of broadband service.”

There are, though, two steps state officials can take, one that might provide a short-term solution to protecting consumers and the other that would provide a final solution once and for all.

First, 22 state attorneys general, including Maryland Attorney General Brian Frosh, have joined advocacy groups and technology companies in going to court to overturn the FCC’s December ruling. If successful in court, internet access service will return to being regulated as a telecommunications service under utility-style regulation, at least until the FCC again changes its mind based on how the political winds are blowing.

Second, state lawmakers and state governors can press their congressional delegations to stand up for consumer rights and pass a comprehensive law ensuring that consumers are protected throughout the internet ecosystem. The same net neutrality rules should apply to all. Congressional legislation is needed to permanently enshrine net neutrality protections for consumers into law and to provide ongoing certainty to ISPs and edge providers alike, regardless of which political party is in power.

Putting the heat on federal lawmakers in Congress is the only reasonable way to re-establish Internet consumer protections.

By Tami Howie.

Ms. Howie is the CEO of the Maryland Tech Council. The MD Tech Council is a member of the Maryland Innovation Coalition, which works to educate government officials about the importance of public policy that keeps up with changes in the economy, technology and innovative industries.

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