Tales of the Sausage Factory

Can The States Really Pass Their Own Net Neutrality Laws? Here’s Why I Think Yes.

We are seeing lots of activity in the states on net neutrality. The Governors of MontanaNew York and New Jersey have issued Executive Orders requiring that any broadband provider doing business with the state must certify that it won’t block, throttle, or prioritize any content or applications. Several states are looking at passing legislation applying some version of the 2015 FCC Net Neutrality Rules, with California furthest along in passing something that effectively replicates the pre-2017 rules. All of which raises the question — can the states actually do that?

 

The FCC not only says “no,” but in the 2017 Net Neutrality Repeal Order, the FCC purported to explicitly preempt any state effort to recreate any net neutrality rules. However, as I pointed out back in 2011 when Republican Commissioners wanted to preempt state reporting requirements, the FCC does not have unlimited preemption power. The FCC has to actually have some source of authority to preempt localities. Indeed, Chairman Pai was so insistent that the FCC lacked the authority to preempt state regulation of intrastate communications services that — in a highly unusual move — he refused to defend the portion of the FCC’s Prison Phone Order capping intrastate rates.

 

 

The critical question is not, as some people seem to think, whether broadband involves interstate communications or not. Of course it does. So does ye olde plain old telephone service (POTS), and state regulated that up to the eyeballs back in the day (even if they have subsequently deregulated it almost entirely). The question is whether Congress has used its power over interstate commerce to preempt the states (directly or by delegating that power to the FCC), or whether Congress has so pervasively regulated the field so as to effectively preempt the states, or whether the state law — while framed as a permissible intrastate regulation — impermissibly regulates interstate commerce (aka the “dormant commerce clause” doctrine). Additionally, certain types of state action, such a the action of the state as a purchaser of services, are exceedingly difficult (if not impossible) to preempt.

 

As always with complicated legal questions, one cannot be 100% sure of how a court will decide. But for the reasons set forth below, I’m reasonably confident that the states can pass their own net neutrality laws. I’m even more confident that a state can decide to purchase services exclusively from carriers that make enforceable pledges not to prioritize or otherwise discriminate against content. Mind you, I don’t think either of these is an effective substitute for federal Title II classification and the 2015 rules. But I encourage states to do what they can and for activists to push for state action in addition to federal action where possible.

 

More below . . . .

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Tales of the Sausage Factory

McDowell and Baker Want To Preempt States on Broadband Reporting? Fat Chance Under Title I.

Sometime back, I coined the term “Cassandrafreude.”  A compound of “Cassandra” and “schadenfreude,” it means “the bitter pleasure derived from seeing someone else suffer in the way you predicted even though you are getting screwed yourself.”

I am experiencing a healthy dose of Cassandrefreude watching FCC Commissioners McDowell and Baker push the FCC to preempt state data collection of broadband deployment (statements here and here). The matter came up when the FCC issued a Declaratory Ruling findng that nothing in federal statutes or previous FCC orders stops states from collecting their own information about broadband deployment. The ruling expresses no opinion about whether state PUCs have existing authority (given that broadband is a Title I “information service”) or whether or not it would be a good idea for states to collect their own data. But even this specter that someone somewhere might do something carriers don’t like prompted Republicans McDowell and Baker to push for the FCC to preempt state authority to collect information. After all, as we all know, broadband providers are timid creatures and likely to be scared off by the least thing that could conceivably raise their cost of doing business — as the broadband providers themselves constantly remind us.

I’ll zip past the usually irony of Republicans who supposedly venerate federalism and demand record evidence before the FCC contemplates action to protect consumers sounding the alarm bell that unless the FCC rushes to preempt state governments, it will mean the end of broadband investment as we know it. Lets get right to the juicy part that fills me with such unbridled Cassandrafreude.

Under what authority, exactly, would the FCC preempt state collection of broadband data?

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