Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00…
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This Week's "Your Turn" Radio Show Lineup

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT: James Bacchus, Former U.S. Representative, Professor of Global Affairs at the University of Central Florida, and Adjunct Scholar at Cato Institute: Free Trade and Destiny;

4:15 CDT/5:15 pm EDT: John Hannah, Senior Counselor at Foundation for Defense of Democracies: US-China Relations;

4:30 CDT/5:30 pm EDT: Quin Hillyer, Contributor to the Washington Examiner and Author: Happenings Inside the Beltway;

5:00 CDT/6:00 pm EDT: Andrew Och, First Ladies Man and Author: The Legacy…[more]

December 10, 2018 • 03:51 pm

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California Attempts Unconstitutional, Unwise "Net Neutrality" Reboot Print
By Timothy H. Lee
Thursday, October 04 2018
California's misguided new 'Net Neutrality' law isn't just bad policy. It's also unconstitutional.

For years and even decades now, California has provided the rest of the nation an abject tutorial in how not to govern. 

Once idealized as the Golden State, California's descent into leftism has rendered it more a dystopia than a destination. 

Its situation has deteriorated so profoundly that it's literally difficult for residents to rent cargo vans to exit the state.  According to a San Francisco Chronicle report earlier this year, renting a moving truck from Las Vegas to San Jose costs $100, whereas renting a moving truck from San Jose to Las Vegas costs almost $2,000. 

This week provided another illustration of why that's occurring, when Democratic Governor Jerry Brown signed SB-822, the so-called "California Internet Consumer Protection and Net Neutrality Act of 2018," which needlessly increases government regulation of internet service for residents of the state. 

Don't be fooled by the bill's deceptive title.  Although stubborn activists who seek government micromanagement of internet service label their effort "Net Neutrality," there's nothing "neutral" about it. 

Quite the contrary, what they falsely label "Net Neutrality" actually means more government intervention and control, not government neutrality.  It means government bureaucrats picking winners and losers on behalf of powerful crony capitalists like Google, and inserting the clumsy hand of big government into an internet sector that was obviously doing just fine without it. 

Sadly, we've witnessed this before at the federal level, with destructive consequences. 

In 2015, after several attempts that were rejected by federal courts, the Obama Administration's Federal Communications Commission (FCC) imposed similar regulations for the entire nation.  As a result, private broadband investment declined for the first time ever outside of a recession.  Prior to that Obama FCC intervention, between 1996 and 2015, the internet had flourished like no other innovation in human history precisely because the federal government had taken a "light touch" regulatory approach to the internet during the Clinton, Bush and even early Obama administrations. 

Fortunately, the Trump Administration FCC under the leadership of Ajit Pai recently reversed the Obama FCC's costly 2015 regulatory framework. 

So why is California attempting to repeat that demonstrably destructive mistake?  It's nothing but sheer ideological fervor.  It's a desire to not only regulate yet another realm of Americans' lives, but also to impose through government force a business model that favors politically powerful "edge providers" like Google.  And it will only reduce private internet investment and quality of service for California consumers. 

But California's misguided new "Net Neutrality" law isn't just bad policy.  It's also unconstitutional. 

And that's precisely why the U.S. Department of Justice and multiple private parties immediately filed suit this week to stop California's futile gesture. 

Here's why it's important, and why those lawsuits should prevail. 

One of the main reasons our Founding Fathers scrapped the unsustainable Articles of Confederation for the Constitution was that economic competition between states and inconsistency between their regulations were wreaking havoc on the nation's commerce. 

Accordingly, the Constitution was drafted to empower the federal government to govern matters of interstate commerce.  Individual states cannot act in ways that disrupt economic comity, or create a spaghetti bowl of conflicting regulations over matters affecting the nation's commercial well-being.  While states remain free to serve as "laboratories of democracy" in areas that don't negatively impact other states, federal authority rightfully demands interstate consistency where the nation's economy is impacted. 

In this instance, California's new law egregiously violates federal interstate commerce authority by contradicting the FCC's recent order, and it threatens the nation's internet sector, as cogently summarized by the federal court complaint filed by private plaintiffs: 

The State of California has enacted SB-822, entitled the "California Internet Consumer Protection and Net Neutrality Act of 2018," directly regulating the provision of broadband Internet access services ("BIAS").  This statute was purposefully intended to countermand and undermine federal law by imposing on BIAS the very same regulations that the Federal Communications Commission ("FCC") expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations), despite the fact that both the FCC decision and the federal Communications Act of 1934, as amended ("Communications Act"), prohibit states from taking such action with respect to jurisdictionally interstate services like BIAS.  SB-822 is therefore preempted under the Supremacy Clause of the United States Constitution.  It also regulates far outside the borders of the State of California and unduly burdens interstate commerce in violation of the dormant Commerce Clause of the United States Constitution.  As the FCC has repeatedly recognized, due to the inherently interstate nature of Internet service, it is impossible or impracticable for an Internet service provider ("ISP")  offering BIAS to distinguish traffic that moves only within California from traffic that crosses state borders.  Both the Supremacy Clause and the dormant Commerce Clause protect ISPs from a patchwork of inconsistent regulations that are unduly burdensome and impossible to comply with as a practical matter. 

Ironically, leftists typically seek to enlarge federal authority over individual states in matters that do not involve actual interstate commerce, as was the case with the ObamaCare individual mandate, for instance.  But whenever legitimate federal interstate commerce authority disrupts the left's hyper-activist agenda, they deem the Commerce Clause irrelevant. 

Beyond the immediate court challenges to California's unwise and unconstitutional law, however, this once again highlights the need for Congress to settle the matter once and for all.  By passing commonsense legislation that ensures a truly free and open internet without crippling its continued progress with a nearly century-old, mother-may-I regulatory framework, Congress can remove future uncertainty and ensure greater private investment and growth. 

Federal courts should promptly overturn California's latest ideological gesture, but Congress should just as promptly settle this question in favor of internet freedom and growth once and for all. 

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Liberty Poll   

For family Christmas giving this year, are you spending more than usual, about the same as usual, or less than usual?