Last month, the Federal Communications Commission voted 3-2 to completely gut the 2015 net neutrality rules that protected Americans from egregious, anti-competitive, and anti-consumer internet service provider practices. With this move, the FCC abdicates its longstanding oversight over harmful practices online and, in a dramatic twist, further preempts states and localities from stepping up in the agency’s absence.
While the repeal of net neutrality threatens democracy, by putting free expression at the discretion of a few large companies that can slow down or block what you see or read, the FCC order added a little-noticed but much more direct attack on our ability to make democratic choices about internet access: The agency invoked its power to preempt state laws to block states from setting their own rules about net neutrality.
Legislators and governors in several large states are exploring whether there are ways to get around that preemption, and experimenting with their own approaches to net neutrality, but the FCC’s preemption sharply constrains their options. That’s a grave mistake, because internet policy should be a welcome opportunity to use one of our country’s most valuable traditions, federalism, to identify policies and approaches that work, as well as those that fail to achieve their goals.
While federalism is often associated with conservatism, it is a rich tradition with successes across the ideological spectrum, from wage-and-hour laws in the Progressive Era to California’s auto emissions standards to more recent experiments with welfare reform and health policy. It’s the tradition represented by Louis Brandeis’s description of states as “laboratories of democracy.” In the case of net neutrality, it’s an opportunity to create and test a full range of options.
Internet service providers that support differential pricing will argue that they cannot possibly follow 50 different sets of requirements — that we will end up with a balkanized national as well as international internet. They are certainly right that federal action would be more efficient and effective. But our government was not set up for efficiency. Its checks and balances, both vertical and horizontal, leave lots of room for experimentation.
State governments are already fighting back against the FCC preemption ruling. Attorneys general across the country are drafting legal challenges to the FCC’s action, with 18 (so far) signing on to New York’s suit. Such lawsuits are the traditional theater of action when states fight federal action.
States and cities are also planning more direct action. Washington Gov. Jay Inslee announced his intent to use state legislative and regulatory power over ISPs to ensure net neutrality happens in practice. In California, state Sens. Kevin de Leon and Scott Wiener have each introduced state bills using varying approaches to protect net neutrality, with de Leon’s having recently advanced out of committee. Public utilities commissions including California’s have gone on record strongly opposing the FCC’s ruling and are exploring their authority to implement state-level open internet protections. Cities, including San Jose, are exploring their options as well.
While the cleanest path to undoing the FCC’s ruling is through the Congressional Review Act, as Sen. Ed Markey has proposed, there is an alternative for states as well: allow an open competition, in which states and cities could experiment with their own rules and practices, which could include offering free or low-cost local internet that is subject to the principles of net neutrality. Governors, legislators, and mayors should be able to respond their constituents by shaping a public forum, private marketplace, and social gathering space that increasingly dominates their lives.
If states can offer public health care, as Massachusetts and Utah have chosen to do, and cities can decide on whether and how much to charge riders for public transit, why shouldn’t they be able to experiment with ways to ensure the fastest, cheapest, and best internet service? Chattanooga, Tennessee, now offers “ultra-high speed Internet” — 1 gigabit per second — at rates ranging from $58 to $70 a month.
The FCC claims to be advancing competition in its draft order. Comcast’s senior executive vice president David Cohen argues that the FCC “can and should … preserve incentives for innovation, investment, and an open Internet.” Whether the FCC’s repeal of net neutrality would lead to these outcomes is debatable. But why should it only be up to the FCC? Let’s let different authorities compete to offer such incentives and judge the best outcome by the results. And let accountability for a fair, open, and equitably accessible internet be found in state legislatures and city halls.
Lenny T. Mendonca is the senior partner emeritus at McKinsey & Co. and chairman of the board for New America. Anne-Marie Slaughter is the president and CEO of New America.