FCC’s broadband paradox opens a door for California’s net neutrality law

10 October 2018 by Steve Blum
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Both California and Washington now have laws on the books that, to one extent or another, reinstate network neutrality rules that were scrapped last year by the Federal Communications Commission. California’s law was challenged by the Trump administration in federal court a couple of hours after it was signed, on a Sunday afternoon, by governor Jerry Brown. Lobbying fronts for AT&T, Comcast, Charter, Frontier and other monopoly model telecoms companies soon followed.

Conventional wisdom has been that a state can’t regulate Internet access service, because it’s clearly a matter of interstate – international, really – commerce. Regulating it is, therefore, a responsibility that the U.S. constitution assigns to the federal government.

But when the FCC repealed its own 2015 net neutrality rules, it stepped away from the job completely, while at the same time telling states they couldn’t step in. That’s a paradox, according to communications law experts interviewed for a Wired article by Klint Finley

“It’s hard to find a case that’s perfectly, squarely applicable, where an agency says ’we’re vacating the field, and we’re not allowing anyone else to enter the field,’” says Marc Martin, a former FCC staffer during the presidency of George H.W. Bush who is chair of law firm Perkins Coie’s communications practice…

“Usually you have preemption where there is a federal rule and a state tries to enact an incompatible rule,” says Pantelis Michalopoulos, a lawyer with the firm Steptoe & Johnson who is representing net neutrality advocates in a federal lawsuit against the FCC. “You’re in a much weaker position when you try to preempt a state rule where there is no federal rule.”

On the same day that Wired posted its piece, the Wall Street Journal ran a scathing editorial accusing California’s “progressive imperialists” of breaking the Internet. Which won’t be allowed, because “the internet by definition is interstate communication”.

Except that the FCC’s most recent net neutrality ruling declares that broadband is not a telecommunications service and is, instead, an information service that’s outside of its control.

The FCC made an unconventional decision. There’s no particular reason to believe that the courts will rely on conventional wisdom to enforce it.