FCC Aims to Cut Out States in Net Neutrality Revamp

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By Tara Jeffries

The Federal Communications Commission’s plan to scrap existing net neutrality rules includes language pre-empting state and local broadband regulation, a move that already has state attorneys general mulling a court challenge.

The FCC’s draft net neutrality changes, which the agency is set to consider at its Dec. 14 meeting, include language overriding states that may prefer the current, stricter rules that bar broadband providers like AT&T Inc. and Comcast Corp. from blocking or slowing data traffic on their networks or offering a speedier tier of service for a higher price.

Maine Attorney General Janet Mills told Bloomberg Law she’s reserving judgment until the FCC votes on the plan next month, but she’s wary of the change.

“Assuming that it’s an adverse decision, we are discussing, as a group, all of our options—including an appeal to the court,” Mills told Bloomberg Law. “There have been some balloons floated, in our state and in other states, in an attempt to sort of ‘pre-empt the pre-emption.’”

Republican FCC Chairman Ajit Pai’s draft order includes a provision saying the FCC’s broadband policy overrides state and local laws that conflict with it, FCC officials said. The commission’s rationale: the internet is a border-less interstate service that falls under the commission’s purview. States can’t pass new laws that subvert the FCC’s regulatory stance, they said.

The FCC’s approach keeps internet rules seamless across state lines, former Republican FCC Commissioner Robert McDowell told Bloomberg Law. The internet is “inherently interstate in nature,” McDowell said. “The states really don’t have a role here.”

GOP Commissioner Michael O’Rielly said in a statement he will work with fellow commissioners “to ensure that the order contains the necessary legal and analytical foundations, including pre-emption.”

If the pre-emption language survives, it would thwart state officials who may want to come up with their own net neutrality rules. The language would prevent Silicon Valley powerhouses from lobbying state officials “and trying to get them to do net neutrality at the state level,” Fred Campbell, director of policy group Tech Knowledge and a former senior FCC official, told Bloomberg Law.

State attorneys general are more likely to go to court against the FCC than champion state legislation, Campbell said. More than a dozen state attorneys general opposed Pai’s proposed measure in a July comment. The Maryland and Connecticut attorneys general are reviewing Pai’s plan, spokespeople said.

Pai’s pre-emption move is proactive, but not necessarily bulletproof, telecom analysts said. State consumer-protection and antitrust laws might be less susceptible to FCC pre-emption, Randolph May, president of the libertarian think tank Free State Foundation, told Bloomberg Law. “It’s less likely that the FCC’s preemption authority would extend to preempting state consumer protection laws, as opposed to traditional economic regulation,” May said.

Some agency watchers still expect states to try and recreate the current net neutrality rules once they’re scrapped. “I think that some states will pass laws that conflict with the FCC’s policies,” Tom Struble, technology policy manager at the think tank R Street Institute, told Bloomberg Law. “Those laws will get struck down.”

To contact the reporter on this story: Tara Jeffries in Washington at tjeffries@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

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