New York Net Neutrality?

Doug Brake January 16, 2020
January 16, 2020

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In 2020, arguing over net neutrality—the notion that Internet service providers (ISPs) treat all Internet traffic the same—feels almost quaint. In the early days of broadband Internet, when bandwidth was scarce and streaming video was nascent, this debate had an urgency that made sense. Who knows, maybe ISPs would leverage their control of the “pipes” to people’s homes to prioritize their own content. But almost two decades later, it is abundantly clear that Internet connections are, and will remain, open.

New York Governor Andrew Cuomo, however, apparently sees it as critical to protect New York residents from this hypothetical threat, listing it a priority on his 2020 legislative agenda. “In New York,” he says, “we are advancing the strongest net neutrality proposal in the nation so big corporations can't control what information we access.” But what exactly is the harm that New Yorkers are facing today?

For virtually the entire history of the Internet, there were no federal or state net neutrality rules and the Internet was open, with consumers able to get all legal content easily. It has been over two years since FCC Chairman Pai rescinded the Obama administration’s rules that were grounded in a telephone-era framework. Yet none of the doom and gloom that activists predicted has come to pass. The longer we go without any up-front rules around net neutrality, and without any harm from network providers, the sillier these arguments look.

Take for example predictions made by Consumer Reports in the wake of the Pai rescission: They expected tighter caps on mobile data plans and more zero-rating plans that would allow some streaming services to pay for an unfair leg up against their competitors. In reality? Competition continues to drive down the price of ever-larger mobile data plans. Consumer Reports feared Verizon would unfairly favor its Go90 video service to lure users away from Amazon or Netflix. The reality? Go90 was a flop that exited the market, but other new streaming services such as Apple TV+ and Disney+ continue to fuel competition for online video. Other predictions like “some content might get blocked” or “broadband pricing will become more like airline pricing—you start paying more fees for the different parts of the internet,” as net neutrality pioneer, Tim Wu, put it—are even more laughable today than they were when the FCC first removed the regulations.

None of this is to say that a new law establishing clear and stable rules around net neutrality would hurt. But if we are to get those rules, then they should be in the form of a uniform, national law. In the United States, broadband is provided almost exclusively by large national and regional providers. Having a thicket of different state-level rules drives up costs, would work against economies of scale and undermine innovation in how broadband is provided. The old telephone network was a much more localized technology, with calls routed through nearby central offices. Local jurisdiction made some sense in that era, but much less so for Internet service provision.

What’s more, state-level broadband bills like New York’s will almost certainly be struck down. True, the courts recently told the FCC it can’t assert an up-front, blanket ban on state-level rules. However, without getting too bogged down in the legal details, if state attempt to enact policies that conflict with the current federal light-touch policy, courts will strike them down one-by-one.

After several attempts at the federal level to craft net neutrality rules—and several trips through the legal system—it is abundantly clear that the only body that can truly end the debate over how to regulate broadband is the U.S. Congress.

Nobody is in deep disagreement over the high-level principles of net neutrality. Nobody wants to see the Internet fractured into different tiers or packages, although market forces continue to prevent that. We would all benefit from a law that ensures an open Internet, without treating it like an old-fashioned telephone utility as the Obama era rules did. But it is Congress, not Governor Cuomo, that should write that bill.