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I don't think the FCC did, nor can they, create a new "federal law" though, right? The FCC removed a regulation. Do states not have the right to regulate in the

I don't think the FCC did, nor can they, create a new "federal law" though, right? The FCC removed a regulation. Do states not have the right to regulate in the absence of any federal regulation?

Spivak 9y ago
The FCC, both under Wheeler and Pai, have had trouble preempting state laws but Congress has no such trouble. The FCC wields delegated congressional power, much like the FDA, and should have authority to preempt state laws as their rules carry the same force of law as bills in congress but the courts have given them a harder time then one might expect. The most notable case was when the courts blocked Wheeler from preventing states from blocking municipal broadband. States in fact do not have that right if the federal law implicitly or explicitly preempts them. It's a corollary of the supremacy clause.
stult 9y ago
>I don't think the FCC did, nor can they, create a new "federal law" though, right? That's a tricky question. At a high school civics class level, no they cannot create new law because only Congress can. But the reality of the modern regulatory state is that Congress has delegated much of its law making powers to specialized experts in executive branch agencies, including independent agencies like the FCC. So they can adopt regulations that have the force of law but are not statutory, though only to the extent that Congress has authorized them to do so. Those regulations are for all intents and purposes laws. However, a federal agency's regulations cannot preempt state law on their own; they can only preempt to the same extent that Congress preempted state law in the statute delegating authority to the agency. And yes, states can regulate where their laws don't conflict with federal laws or regulations. But there's a limit. Congress can enact laws which implicitly preempt state regulation because the federal regulatory scheme is so complete that it "fully occupies the field" leaving no room for supplemental state regulation. In which case, states cannot regulate. I would be surprised if a court held that the feds have field preempted internet regulation, given how much it ties into areas of traditional state primacy such as property law. But who knows these days.
dragonwriter 9y ago
> I don't think the FCC did, nor can they, create a new "federal law" though, right? The FCC removed a regulation. The FCC being able to pass and remove regulations in an area means Congress has created federal law governing that area and assigned to the FCC regulatory authority in that area. Further, even with no federal law, dormant commerce clause concerns come into play.

I don't think the FCC did, nor can they, create a new "federal law" though, right? The FCC removed a regulation. Do states not have the right to regulate in the absence of any federal regulation?

Spivak 9y ago

The FCC, both under Wheeler and Pai, have had trouble preempting state laws but Congress has no such trouble. The FCC wields delegated congressional power, much like the FDA, and should have authority to preempt state laws as their rules carry the same force of law as bills in congress but the courts have given them a harder time then one might expect. The most notable case was when the courts blocked Wheeler from preventing states from blocking municipal broadband. States in fact do not have that right if the federal law implicitly or explicitly preempts them. It's a corollary of the supremacy clause.

stult 9y ago

>I don't think the FCC did, nor can they, create a new "federal law" though, right? That's a tricky question. At a high school civics class level, no they cannot create new law because only Congress can. But the reality of the modern regulatory state is that Congress has delegated much of its law making powers to specialized experts in executive branch agencies, including independent agencies like the FCC. So they can adopt regulations that have the force of law but are not statutory, though only to the extent that Congress has authorized them to do so. Those regulations are for all intents and purposes laws. However, a federal agency's regulations cannot preempt state law on their own; they can only preempt to the same extent that Congress preempted state law in the statute delegating authority to the agency. And yes, states can regulate where their laws don't conflict with federal laws or regulations. But there's a limit. Congress can enact laws which implicitly preempt state regulation because the federal regulatory scheme is so complete that it "fully occupies the field" leaving no room for supplemental state regulation. In which case, states cannot regulate. I would be surprised if a court held that the feds have field preempted internet regulation, given how much it ties into areas of traditional state primacy such as property law. But who knows these days.

dragonwriter 9y ago

> I don't think the FCC did, nor can they, create a new "federal law" though, right? The FCC removed a regulation. The FCC being able to pass and remove regulations in an area means Congress has created federal law governing that area and assigned to the FCC regulatory authority in that area. Further, even with no federal law, dormant commerce clause concerns come into play.