Washington State was the first to pass a true Net Neutrality law that
restored all the public protections the FCC withdrew when it killed Net
Neutrality late last year; the move is symbolically awesome but legally
fraught, seeking to redefine the line where the FCC’s authority stops
and the states’ authorities start.
Late in the second Obama administration, a progressive FCC started to
show some backbone, enacting not just a modest Net Neutrality rule, but
also a rule banning states from limiting municipal networks. Big Telco
mobilized its lobbyists, working with state lawmakers to successfully
sue the FCC over exceeding its authority in telling states how they
could regulate their networks.
At the time, Net Neutrality advocates decried this “states’ rights”
argument, insisting that the FCC had the authority over the nation’s
telcoms policy.
Now that the FCC has been colonized by Ajit Pai, a former Verizon
executive who is handing out regulatory favors in bulk to his former
employer, many of the same pro-Net Neutrality advocates are arguing that
states have the right to make their own telcoms policy, while the
Republicans, corporate water-carriers and telcoms lobbyists who were
trumpeting states’ rights against Obama’s FCC are now certain that the
states have no business frustrating the will of the Trump FCC.
Ars Technica spoke with State Rep. Drew Hansen (D-Bainbridge Island), a
trial lawyer who sponsored Washington’s Net Neutrality law, about his
legal rationale on the matter of state and federal telcoms authority.
Hansen has an interesting theory: the FCC is required to oversee the
orderly operations of the nation’s telcoms infrastructure, and in
failing to do so, they have abandoned their authority. They can impose
their rules overtop of state rules, but their can’t impose no rules over state rules.
It’s a plausible-sounding argument that I lack the expertise to
evaluate. I’m mindful, too, that my optimism over this approach may be
wishful thinking, as I live in California, a state that is trying to
follow Washington’s lead with similar legislation. Also, I note that my
EFF colleague Ernesto Falcon, who is our lead legislative counsel, is
skeptical: “Falcon thinks the dormant commerce clause will make state
net neutrality laws vulnerable to legal attack unless states use
indirect regulatory approaches, such as requiring recipients of state
broadband subsidies or state contracts to abide by net neutrality.”
The telcos say that they can’t practically manage a patchwork of 50 or more local telcoms rules, though that is wildly overstated
as a purely technical matter. Politically, it’s something of a
nonstarter: if the telcos didn’t want the states to create local rules,
they shouldn’t have worked so hard to erase any semblance of a national
rule.
One thing I like about Hansen’s argument: it seems to address the major
concern regarding any kind of states’ rights precedent, which is that
such a precedent would allow captured states with Republican
legislatures to opt out of good FCC rules. By insisting that
the states only have the power to regulate their telcoms in the absence
of FCC rules, Hansen is daring the FCC to have a real rulemaking, based
on evidence, which produces some kind of meaningful regulation. So long
as Pai continues to insist on the ideological and industrially
attractive principle of having a no-regulation free-for-all, the states
get to override him.
