Preempting the State: Is It Legal?

We will find out!  In California, Senate Bill 822 is awaiting Governor Brown’s signature for its net neutrality legislation to become law.  The law would prevent Internet Service Providers (ISPs) operating in the state from blocking, throttling, and prioritizing traffic over broadband networks.  States, particularly ones with Democratic Governors and/or Attorney Generals, are arguing, that when the FCC went to light-touch regulation of the Internet, changing the broadband classification from common carrier (Title II) to information service (Title I), the FCC gave up its preemptive authority to dictate what they can do.  (Note: Two years prior to the FCC rule change on net neutrality, the U.S. Court of Appeals stated that the FCC does not have the power to preempt state laws that restrict cities from building their own broadband networks.)

But, in this situation, the FCC believes that it can preempt state laws that conflict with its policy because broadband is an interstate service that does not recognize state lines.  Representing the industry, Jonathan Spalter, President and CEO of USTelecom, argues that “The internet must be governed by a single, uniform and consistent national policy framework, not state-by-state piecemeal approaches.”

Who is right?  Or, who will win?  I’m not sure, but the short-term costs of complying with and legally challenging states that have adopted net neutrality laws or executive orders will be very costly for the ISPs.  Of the 22 states with Democrats as Attorney Generals, 12 have Democrats as Governors.  Oregon and Washington were the first two states to pass laws.  As evident by California’s actions, they will not be the last. 

State	Governor	Attorney General
California	X	X
Colorado	X
Connecticut	X	X
Delaware	X	X
Hawaii	X	X
Illinois		X
Iowa		X
Kentucky		X
Louisiana	X
Maine		X
Maryland		X
Massachusetts		X
Minnesota	X	X
Mississippi		X
Montana	X
New Mexico		X
New Jersey	X	X
New York	X	X
North Carolina	X	X
Oregon	X	X
Pennsylvania	X	X
Rhode Island	X	X
Vermont		X
Virginia		X
Washington	X	X
West Virginia	X

https://www.ustelecom.org/news/press-release/ustelecom-statement-net-neutrality-bill-california-state-senate