Telco lobbyists eager to sue states over net neutrality laws

29 March 2018 by Steve Blum
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AT&T, Frontier Communications and other telcos will meet state and local level network neutrality initiatives head on. Using their Washington, D.C. lobbying front, USTelecom, they intend to “aggressively challenge state or municipal attempts to fracture the federal regulatory structure”. Or lack thereof.

In a rambling blog post that oddly invokes the original U.S. Articles of Confederation – it hasn’t had any legal effect for more than 200 years but even so, it explicitly gave states the power to make such decisions – USTelecom CEO Jonathan Spalter pledges to say “hell no” to any attempt by states or municipalities to revive network neutrality obligations.

Two net neutrality revival bills are pending in Sacramento, and the Oregon and Washington legislatures have already approved their own versions. There’s no question that these bills will be challenged in court. Conventional wisdom is that state (and local) purchasing requirements – where agencies can only buy broadband service from providers that adhere to particular net neutrality principles – have a good chance of surviving, but explicit state-level regulations don’t.

Not necessarily. There’s a makable case that states do have the authority to impose net neutrality rules, at least for intrastate services, as telecoms law expert Harold Feld explains

We have well over 80 years of history of states regulating how local telephone companies and local cable companies do business within their state. So this isn’t a case where Congress has “preempted the field” as against any state regulation. To the contrary, states traditionally have lots of authority over how they regulate any offering of local service, including an ability to impose non-discrimination requirements.

Feld argues that since the Federal Communications Commission declared that it doesn’t have the authority to regulate Internet service providers, it doesn’t have the authority to preempt state laws in that regard either.

So far no one, including USTelecom, has taken any state net neutrality laws or executive orders to court. Technically, the FCC’s decision rolling back its own rules hasn’t taken effect yet. If it does – it’s also facing legal challenges – expect to see a rush to the courthouse door.