My former PFF colleague Randy May, now president of the Maryland-based Free State Foundation, had an editorial in The Washington Times over the weekend about the ominous new trend of state governments pushing Net Neutrality mandates. He notes that Maryland has just introduced such a measure, joining California, Maine and Michigan as states who have tried to go at it alone on this front.
This is a dangerous development for reasons made clear in another Free State Foundation report, this one by James Speta of the Northwestern University School of Law. Speta points out that:
Although some issues in telecommunications have salience at more than one jurisdictional level, network neutrality is the quintessential federal issue. First, applications and content on the Internet are distributed nationally–and internationally. Almost never will a user access only in-state websites. Network neutrality regulation addresses the relationship between Internet access providers on the one hand and applications and content providers on the other. As a matter of telecommunications doctrine, therefore, network neutrality is a federal issue. Indeed, the FCC has already defined what it considers to be the best network neutrality regime: a general statement of policies to be applied, if necessary, on a case-by-case basis. State attempts to regulate in this area are therefore preempted.
Second, Internet access providers themselves have national footprints, design their networks based on national business practices, and advertise in national media. As a matter of policy, any fragmentation caused by different state network neutrality rules would introduce inefficiencies at a time when expanding the availability of broadband is a high national priority.
I would hope that even supporters of federal Net neutrality regulation would understand the dangers associated with giving state government more authority over the day-to-day workings of the Net. It could be a disaster in the making if a patchwork of parochial policies was applied to this global medium, especially if states use NN rules as a way to embark on other forms of Net regulation.
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