The case for maintaining a federal approach to govern your mobile broadband experience
Dec 12, 2017
December 11, 2017 By: Scott Bergmann
On Thursday, the FCC will return broadband to its historically bipartisan, light-touch, and national regulatory framework. In this blog, we’ll focus on the importance of the national aspect of the FCC’s regulatory framework.
For more than twenty years, the FCC has recognized the value of having uniform federal rules for broadband services. While that framework has led to unprecedented investment and innovation in wireless networks, there is danger that some state and local governments could upset our successful national approach.
That risk is not hypothetical. Last week, a state legislator introduced a proposal to impose state-level net neutrality restrictions. A group of mayors suggested a desire to layer on their own regulations as well. These officials lamented that the FCC’s draft order would preempt non-federal regulation of all aspects of “broadband service provision, likely including privacy-related rules.” But the fact that the FCC is proposing to keep broadband services in a national framework is a good thing, as we outline below.
A National Framework Will Help Drive Continued Wireless Investment. The FCC’s proposed move is the right one for our nation’s competitiveness, ensuring that government policies fully incentivize the wireless industry’s continued investment in our nation’s future infrastructure. The FCC understands that encouraging investment benefits America’s wireless consumers and the entire Internet ecosystem.
Look no further for proof than our recent 4G success. The fact that the U.S. leads the world in wireless is a quintessentially American success story, enabled in large part by a national framework for mobile broadband—an inherently interstate service. With help from smart policies reflecting that, the wireless industry invested over $200 billion to deploy 4G networks to 99.7% of the country in just seven years.
If states ignore Congress’ express direction and create a patchwork quilt of regulations, that creates real uncertainty. And that means, absent preemption, the promise of more investment and innovation underlying the Commission’s efforts would be put needlessly at risk. We need the right incentives for wireless investment to go up and the cost of expanding networks—especially in rural areas—to go down. After all, more resources plowed into complying with 50 different sets of state rules means fewer resources to bring consumers better networks.
The FCC is Right to Act and Stands on Firm Legal Ground. Preemption is legally consistent with both FCC and federal precedent, as we’ve [explained](https://ecfsapi.fcc.gov/file/1113201502040/171113 - CTIA Ex Parte.pdf). It’s worth a read.
Congress intended for the federal government to exercise exclusive jurisdiction over interstate traffic like broadband. That means state and local regulations that conflict with the federal regime can and should be preempted—especially when those regulations would conflict with the long-standing national policy of light-touch broadband regulation.
After all, as we’ve noted, “It is Congress’s objectives, not the will of the states or their political subdivisions, that should determine what requirements, if any, apply to broadband Internet access. State regulation that addresses broadband providers – with respect to network neutrality, privacy, or other matters – would contravene [[federal policies]], undercutting deployment and harming consumers.”
Your Wireless Experience Doesn’t Recognize State Boundaries. In addition to federal law, we also have the laws of physics on our side. Let me explain. If you live in Maryland or Virginia and commute to Washington, DC, your mobile broadband experience doesn’t stop—or change—because you cross those boundaries. Your wireless carrier doesn’t treat your mobile data and voice traffic differently either.
Crossing state lines doesn’t change your mobile experience. The laws governing that experience shouldn’t change either. The order’s approach to preemption reflects that reality.
The beauty of wireless networks is that they free us from 20th century limitations like geography, distance, and boundary lines. That they do so in the 21st century is because they were built under a federal regime, as Congress directed. While radio waves and cellular architecture enabled mobility, so too did a federal regime that has allowed mobile operators to adhere to a uniform policy rather than 50 disparate ones.
The Downsides of a 50-State Patchwork Quilt . Designing a mobile broadband experience that could comply with such a hodgepodge collection of regulations will ultimately harm the consumers that these state laws are ostensibly designed to protect.
Imagine 50 different rules on consumer data use, pricing, and network management. Imagine the confusion as consumers try to navigate choosing the best provider for their mobile needs. Imagine re-designing a mobile network that covers the entire country to comply with all of those rules, simultaneously.
There’s a reason why states don’t get to regulate the transmissions of TV and radio broadcasters. Think about it. Can you imagine if a television station based in New York had to send three different broadcasts for New York, Connecticut and New Jersey?
The Path Forward. The FCC has clear authority to prevent this situation. And courts have upheld the FCC’s right to set similar federal standards in the past. In fact, as the Supreme Court, in City of New York v. FCC , found, “a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation and hence render unenforceable state or local laws that are otherwise not inconsistent with federal law.”
Exercising the FCC’s preemption authority is the right thing to do, just as it was when the last Administration took the same approach in 2015. By removing any doubt regarding the ability of states and localities to regulate mobile broadband, the FCC would eliminate investment-inhibiting uncertainty. And the agency would uphold what Congress has commanded to be U.S. policy—the preservation of a vibrant and competitive mobile market “unfettered by Federal or State regulation.”
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