State Net Neutrality Regulations Are An Exercise In Futility

  • Forbes | by: Fred Campbell |
  • 2018-08-14
After the Federal Communications Commission (FCC) repealed most of the agency’s net neutrality regulations late last year, advocates for heavy-handed internet regulation shifted their focus to state governments. According to the National Regulatory Research Institute, these advocates have convinced a majority of states to propose, and in some cases pass, legislation or an executive order that would enforce some or all of the defunct federal rules at the state level.

These efforts will be short-lived. State laws that defy the FCC’s net neutrality repeal will not survive challenge in federal court. Preemption is a slam dunk.

The Constitution’s Supremacy Clause gives Congress the power to preempt state law, and a federal agency acting within the scope of its congressionally delegated authority has the power to preempt state regulation. In its net neutrality repeal order, the FCC was acting within the scope of its delegated authority under the Communications Act when it expressly preempted any state or local requirements that are inconsistent with the deregulatory federal approach.

The Supreme Court has recognized that the “Communications Act is a comprehensive scheme for the regulation of interstate communication.” Where Congress has legislated comprehensively and occupied an entire field of regulation—in this case, interstate communication—“even complementary state regulation is impermissible.” Because broadband internet access services are inherently interstate, and the statutory scheme does not provide a role for the states in regulating those services, states have no authority to regulate them.

State net neutrality laws are also in direct conflict with specific Communications Act provisions. Net neutrality regulations are a form of “common carrier” regulation, and the Communications Act exempts “information service” providers from such regulation. There is no question that Congress delegated authority (i.e., jurisdiction) to the FCC to decide whether internet service providers (ISPs) should be classified as information service providers. That’s the authority the FCC exercised in its order repealing the net neutrality regulations: the agency decided that ISPs are information service providers. Once it did, the express command of the Communications Act itself exempted them from common carrier regulation.

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