The dingo is in the details as FCC reverses common carrier decision, preempts state broadband laws

22 November 2017 by Steve Blum
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The Federal Communications Commission’s draft common carrier order is an unconditional surrender to the demands and desires of big cable and telephone companies. It reverses the 2015 decision to treat broadband as a common carrier service and impose network neutrality rules. As tabled by chairman Ajit Pai and enthusiastically endorsed by his colleagues in the republican FCC majority, the draft combines a lawyerly micro-focus on cherry picked data points with arguments formed not by reason but by a pre-determined result.

At the top of the list is a far reaching preemption of state and local laws. Not just laws that try to explicitly reinstate scrapped rules, such as privacy protection or net neutrality, but also any measure that encroaches on territory that the FCC has “decided to refrain” from entering. In other words, anything even tangentially related to broadband…

We therefore preempt any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that we address in this order. Among other things, we thereby preempt any so-called “economic” or “public utility-type” regulations, including common-carriage requirements akin to those found in Title II of the Act and its implementing rules, as well as other rules or requirements that we repeal or refrain from imposing today because they could pose an obstacle to or place an undue burden on the provision of broadband Internet access service and conflict with the deregulatory approach we adopt today.

Although we preempt state and local laws that interfere with the federal deregulatory policy restored in this order, we do not disturb or displace the states’ traditional role in generally policing such matters as fraud, taxation, and general commercial dealings, so long as the administration of such general state laws does not interfere with federal regulatory objectives.

The draft also changes the definition of mobile broadband from a commercial service, to a private one.

Internet service providers would have to disclose certain policies to consumers, but would otherwise be able to restrict access to information offered by competitors or bestow special privileges on content that they own. Enforcing the meager rules that still exist would be up to the Federal Trade Commission.

In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 22 November 2017.