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

Wetmachine Tales of the Sausage Factory Can The States Really Pass Their Own Net Neutrality Laws? Here’s Why I Think Yes.

This is Harold Feld's analysis of the question. Feld concludes that states can in fact regulate advanced telecom services. Feld reasons that while advanced telecommunications are clearly interstate, the scope of the U.S. Federal Communications Commission's jurisdiction isn't absolute and thus may not allow it to preempt the states should they enact statutes that codify the FCC's 2015 Open Internet rulemaking. The FCC is in the process of reversing the rulemaking that placed advanced telecommunications under Title II of the federal Communications Act, designating it as a common carrier utility.

The rulemaking's so-called "net neutrality" provision barring providers from blocking or throttling traffic over their networks has drawn concern that the providers might abuse their monopoly control over networks extract revenues.

That's a prospective concern that is less relevant and pressing in many states than the lack of advanced telecommunications infrastructure that leaves many homes, schools and small businesses unable to obtain service or offered substandard service options because their areas have been redlined by legacy incumbent telephone and cable companies. The FCC's Open Internet rulemaking requires service be provided upon reasonable customer request and specifically bars discriminatory redlining.

These mandates -- and less so net neutrality -- is why the providers and their trade associations will strongly oppose any proposed state legislation based on the federal rulemaking. State lawmakers are hearing far more vocal complaints from constituents that they've been refused service or forced to use pricy, substandard wireless services that don't meet minimum FCC requirements for advanced telecommunications than concerns providers will in the future block or throttle content. The volume and urgency of those complaints have been growing over the past decade or so. In addition, during that period and increasingly in recent years, state representatives have declared advanced telecommunications infrastructure critical to support commerce, government and education.