^{Democracy & Technology Blog} Ensign’s Preemptive Strike

Want to know what U.S. policy makers looking at telecom should have done 10 years ago?
Well, today Senator John Ensign of Nevada introduced far-reaching communications legislation that would substantially deregulate broadband technology and services at both the federal and state level and also would free both cable and telecom carriers from many local video franchising rules and fees. It’s a sweeping move, preempting most of the complex and balkanized patchwork of state and federal laws. If a new Telecom Act is shaped around Ensign’s bill, we could enjoy an explosion in new communications investment.
We can only hope that after 10 years of being blinded and confused by opponents of reform, who kicked up as much dust as possible on this complex subject, Republicans in Congress and the Administration will now see clearly and fully embrace this pro-technology, pro-growth move. Some conservatives have been fooled into opposing such reforms because of “state’s rights.” Federalism has many virtues — in many ways it is the essence of our republic — but “state’s rights” does not apply to the unelected public utility regulators in the 50 states. These quasi-judicial regulators are (1) empowered and protected by federal communications law and thus mostly not accountable to the citizens of their states; and (2) often more worried about the relevance of their jobs than about the economic implications of their actions, now that communications has long since exited the monopoly utility era.
Likewise, it is absolutely true the Constitution’s Commerce Clause has been perverted to encompass many activities the founders never intended and to empower Washington bureaucrats to micromanage most anything they like. The Commerce Clause should be read far more narrowly than it has been over the last 70 years. Nevertheless, if the Commerce Clause applies to any activity, surely the Internet is it. Ensign’s bill thus perfectly comports with the founders’ original and far-sighted intent for the Commerce Clause, which was to prevent local and regional regulations from blocking commerce. The Commerce Clause was meant to limit regulation, and Ensign’s bill will unleash the global corporations (as well as local entrepreneurs) who are most able and likely to invest the tens of billions of dollars still needed to reconstitute our communications networks for the broadband era.
-Bret Swanson