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Amicus Brief of Harold Furchtgott-Roth and Kirk Arner in Support of Petition for Rehearing

Harold Furchtgott-Roth & Kirk R. Arner

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Introduction and Summary of Argument

In their short lifespan, the Internet and the broadband services that connect Americans to it have transformed how we live our lives. The Internet’s profound power comes from the fact that it is a single, unified national and international network that respects no boundaries—save for those of foreign autocrats. Thus, the very idea of an “intrastate” broadband service is a logical and practical nullity.

Because broadband is an interstate, rather than intrastate, service, state governments should not be permitted to regulate them with state-level “network neutrality” laws, such as California’s, as doing so would impermissibly infringe upon and harm interstate commerce. Moreover, the practical result of state-by-state network neutrality regulations would be utter bedlam for the Internet. Broadband providers would be forced to offer different service offerings in different states—if that would even be possible—or offer the same service in every state bounded by the restrictions of states with the most stringent laws. The end result would be higher prices for American broadband consumers and lower investment and innovation by America’s broadband companies and Internet entrepreneurs, all thanks to the legal and regulatory minefield of fifty separate network neutrality regimes.

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