Government officials from twenty-two states have filed a brief in the case of Mozilla v. FCC, seeking to restore the so-called net neutrality rules from 2015 and to vacate the Restoring Internet Freedom Order (RIFO) from 2017. Their legal reasoning, however, suffers from multiple and serious flaws. The states’ brief misses key facts and contains misunderstandings about the internet and 2015 Open Internet Order (OIO). Further, if they are successful, these state officials would balkanize the internet.
The states’ brief alleges that the FCC failed to “address the impact of the Order on public safety.” The brief points to the electrical grid as an example and claims that the repeal of 2015 rules jeopardizes the ability of state officials to react when the electrical grid is stressed. Even a cursory read of the 2015 Open Internet Order reveals that this is false: the OIO expressly exempted networks like those used to support the electrical grid—the 2017 RIFO changed nothing regarding the electrical grid. The state officials seem, at some level to understand the weakness of the claim; the brief spends two sentences asserting this inflammatory argument and then moves on.
The brief subsequently says: “There is no evidence that it is possible to isolate and preferentially prioritize communications important to public health and safety.” Again, this is a provably false claim. Telecom companies have been “isolating and prioritizing” important communications services for years. Millions of Americans rely on technologies like VoIP and VoLTE that prioritize voice and emergency services on broadband networks. Not only is it possible to prioritize public safety communications, the federal government has spent billions of dollars premised on this fact. For example, prioritizing public safety communications is central to FirstNet, the independent government authority created in 2012 to equip first responders with wireless broadband for their communication and information needs.
The brief also attacks RIFO’s preemption of state laws because these state officials wish to allow states and cities to regulate the internet in the name of net neutrality. First, as a federal court of appeals recently held, state regulation of interstate internet services is preempted by federal law. Legal precedent aside, the states’ and cities’ desire to enact local internet laws is troubling for a pragmatic reason: it would fragment the global internet into dozens, or even hundreds, of intra-state networks. Each regulator could take a different approach to net neutrality, creating innumerable legal contradictions as to what is or is not allowed.
There are likely other errors that will be uncovered in litigation but a quick review suggests that this brief was rushed. The eagerness by some state officials and advocates to regulate the internet is a recent, unfortunate trend. The internet flourished in the US because of a twenty-year national policy that the internet and internet services should be “unfettered by Federal or State regulation.” The 2017 RIFO restores that successful national policy but too many state officials wish to turn back the clock and regulate the internet.
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