A number of states have taken it upon themselves to either implement their own net neutrality rules or issue executive orders requiring that broadband access providers servicing their states follow practices that prohibit throttling of data from unaffiliated content providers; prohibit the blocking of access to content of a consumer’s choosing; prohibits content providers from gaining priority for their traffic over other content providers where they compensate the broadband access provider for the privilege; and requires broadband access providers make transparent the terms and conditions of service as part of transparent network management.
This is the type of behavior that would be expected from a sovereign state where they exercise complete jurisdiction over communications platforms within their geographical or legal physical boundaries. But where at issue is the transmission of data over a global network of interconnected computers, where traffic is sent and received from almost any point in the world, can approximately 21 separate states tell broadband access providers how best to manage this traffic contrary to what the nation’s lead agency responsible for regulating the communications network has required by rule?
What we now call States are the spawns of 13 original British colonies, organized territories, and unorganized territories. While the reasons for individual settlement ranged from the ability to practice certain religions freely to establishing trade and making returns on capital investment to pulling an individual out of poverty, sovereigns granted charters to colonies in return for global political and economic gains. Sovereigns expected colonial governors to manage a colonies human and natural resources in order to produce taxable goods and services. Taxes collected increased the wealth of the monarchy.
Lost in the transition from rule under a monarch to rule under a federal government is that only the nature and construct of the sovereign has changed. America abandoned rule by a single monarch to rule by a central national government with the very powers that the monarch possesses: the power to tax, borrow on future tax receipts, and regulate foreign and domestic trade and commerce. Much to the chagrin of states’ rights proponents and desperate advocates of net neutrality, America’s 50 states today occupy the same status of no sovereignty as possessed by the original 13 colonies. States are nothing but suped-up territories on steroids and have no jurisdiction to regulate an international communications network.
States’ rights advocates often direct their argument to the Tenth Amendment of the U.S. Constitution which reserves certain powers to the States. Specifically, the powers not delegated to the national government or prohibited by the Constitution to the States are reserved to the States. These powers are restricted by Article I, Section 10 of the Constitution which says the following:
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
The plain reading of Article I, Section 10 leads me to conclude that States have no jurisdiction other than that granted to them by the national government and its agencies. If States had sovereignty, the Constitution would have been written in reverse, where the States granted limited responsibilities and specified limited powers to the central government. Unfortunately for net neutrality advocates, this is not the case.
Net neutrality is a data market issue. Specifically, the requirements of net neutrality place barriers to entry into data markets defined either by national and state borders or by the geographic areas served by a broadband access provider’s local network. While net neutrality advocates may argue that their goal is the non-discriminatory free flow of data over broadband networks, implementing state rules on how this flow is to be regulated is unconstitutional because this is a space, the regulation of commerce, that is occupied solely by Congress.
Progressives must recognize the irony, that the political argument of states’ rights, usually the narrative espoused by conservatives, is the very platform upon which progressives are launching their state attack on the Federal Communications Commission.
Congress could take the opportunity to reassert itself as the branch of government responsible for the regulation of commerce. Congress could via statute define net neutrality and clarify how traffic transported via broadband networks is to be regulated.
Unfortunately, partisanship is tainting the debate where Progressives in the U.S. Senate are more concerned about keeping net neutrality in play as an election issue in hopes that the Federal Communications Commission’s recent repeal of the 2015 open internet order can be a basis for attacking Republicans as a party not concerned with democracy on the internet.