Internet is no place for Washington state lawmakers to meddle

There is only one internet. There is not a Washington state internet or a California internet, or even a United States internet.

That’s why rules for internet service providers should be made at the national level, and why state House Bill 2282, subjecting providers to Washington-specific regulations for the first time since the internet’s advent, was a mistake for the Legislature to pass and the governor to sign.

HB 2282 is a hasty, knee-jerk reaction to events in the national debate over “net neutrality.” It is bad policy, federally preempted and likely will be tossed out in federal court.

In December, the Federal Communications Commission adopted the Restoring Internet Freedom Order. The FCC’s stated goal was a return to the national policy that launched and sustained the wildly successful American internet economy for more than 20 years, during which time no state had its own net neutrality law.

The order reversed the FCC’s 2015 decision to subject internet service providers to utility-style regulations.

As different as they are, the 2015 and 2017 FCC decisions both are rooted in the philosophy that there should be a single national policy governing the internet.

In both orders, the FCC announced the preemption of competing state internet regulations, protecting the internet from being buried under 50 layers of conflicting, overlapping state regulations.

The rush to state-specific regulation, however, ignores crucial facts:

First, the FCC continues to require transparency from internet service providers as to their net neutrality practices (just as HB 2282 does).

Second, the FCC has returned authority to the nation’s top consumer watchdog, the Federal Trade Commission, to address potential net neutrality issues in a consistent manner for all consumers regardless of where they live.

A third fact is also crucial to weighing the recent federal action. The FCC did not preempt state attorneys general from enforcing their states’ existing consumer protection statutes to police unfair or deceptive ISP acts or practices. AGs have proven themselves to be aggressive consumer advocates.

Notwithstanding these facts and the FCC order’s clear language preempting new state regulations to prevent the internet’s balkanization, Washington leaders have adopted state-level net neutrality rules.

In addition to contravening the FCC’s national policy, there is little chance the state law will be upheld in federal court.

Federal supremacy here exists for good reason. Imagine if the FCC did not preempt state laws like HB 2282. Over time, dozens of states would create their own frameworks for regulating the internet.

Such a fragmented approach is what the FCC has sought to avoid over successive administrations, even as its commissioners have disagreed with one another over time about how best to achieve net neutrality.

It is revealing that governors and states did not line up to pass state laws regulating the internet after the 1996 Telecom Act, which was championed by President Bill Clinton. It declared that the policy of the U.S. is to leave the internet “unfettered by Federal or State regulation.”

Regulating the internet at the national level was the right choice then and still is today.

Rather than wasting their time and resources on legislation that will be struck down by the courts, state leaders should strongly encourage their counterparts in Congress to step up and legislate a bipartisan, national net neutrality solution.

This story was originally published March 10, 2018 at 12:55 PM with the headline "Internet is no place for Washington state lawmakers to meddle."