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I don't think the FCC would have the power to strike down local laws, if they even had any desire to. The best they could probably do would be a lawsuit, but t

I don't think the FCC would have the power to strike down local laws, if they even had any desire to. The best they could probably do would be a lawsuit, but the states would be well within their rights to add new laws on top of federal ones.

wpietri 8y ago
What makes you so confident the FCC couldn't win in court? My understanding is that states have some right to additionally regulate, but only to the extent that federal law allows it.
- blind_boy_grunt 8y ago
  In Tennessee v. FCC, [1] the FCC, under the authority of §706 of the Telecommunications Act of 1996, attempted to preempt state laws that prohibit municipalities from building their own broadband networks under certain circumstances (these laws were obviously lobbied and passed by ISPs in the state legislatures). This was struck down by courts because, although the supremacy clause means that federal law supplants state law, the federal law at hand was so far removed from what the FCC was doing in this particular case, that the FCC was essentially creating "directives" which overruled state law in pursuit of a vague goal that was defined in federal law. In essence, federal administrators/bureaucrats had the power to overrule state law. Although the ISPs "won" in that decision, it cuts both ways -- which means that any attempt by the FCC to preempt net neutrality regulations under §706 is likely to fail as well. Sorry if my take is a little confusing, here is some more coverage: [2], [3]. [1] http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0189p-06.pdf http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0189p-06.pdf [2] https://www.forbes.com/sites/danielfisher/2016/08/10/fcc-loses-bid-to-preempt-municipal-broadband-laws-in-tennessee-n-c/#7e9e24a64e7f https://www.forbes.com/sites/danielfisher/2016/08/10/fcc-los... [3] https://arstechnica.com/tech-policy/2016/08/in-blow-to-muni-broadband-fcc-loses-bid-to-overturn-state-laws/ https://arstechnica.com/tech-policy/2016/08/in-blow-to-muni-...
  - Avshalom 8y ago
    Problem is: if New Mexico passes a Net Neutrality law but all of the Netflix data centers are in Arizona it's suddenly going to be "interstate commerce"
    - ashelmire 8y ago
      Something being interstate commerce does not prevent states from legislating on it. Under that logic, states couldn't regulate the sale of anything produced in another state, which is obviously untrue.
      - Avshalom 8y ago
        no it just means that the federal government has constitutional power to over rule it if they feel like it, no need to argue on the basis of any existing case law.
    - blind_boy_grunt 8y ago
      Yes, and congress could pass a law banning net neutrality. But under current law, the FCC is not able to issue a directive doing the same thing. A law banning NN will never get passed due to gridlock (thankfully), so barring some huge change in public opinion I don't see states being prohibited from enforcing NN.
- deleted 8y ago
  [deleted]
- juliangoldsmith 8y ago
  States have room to pass whatever regulation they want by default. It only becomes a problem when it conflicts with federal law, in which case federal law always takes precedence.
cavanasm 8y ago
So it's a little more complicated than that? In their repeal, the FCC argued that the FCC had no authority to enact net neutrality or regulate ISPs. Prior to that, the FCC was considered to have had absolute authority over the issue and it was generally felt states had no standing on the issue. So states are seizing on the FCC saying they can't regulate it, while the FCC is now trying to claw back their argument and claim ISPs exist in a regulatory void where no one can regulate them until Congress passes new legislation.
- juliangoldsmith 8y ago
  >the FCC is now trying to claw back their argument How so? Based on what I've read, I've gotten the impression that the Internet will be primarily regulated by the FTC, instead of the FCC. That would mean that ISPs aren't able to engage in anticompetitive practices, but are pretty free otherwise. I haven't heard anything about states' standing on the issue. Unless there are explicit federal laws saying that the government can't regulate the Internet (which seems unlikely), it's pretty cut-and-dried that states would be able to pass legislation to affect ISPs in their jurisdiction.
jcranmer 8y ago
There's a concept called "preemption" in US law. If a state and the federal government has laws that conflict, federal law wins and the state's law is voided. What this means is that if the federal government wishes to regulate something, it can direct that the states' regulations are circumscribed or voided. The FCC first tried to regulate net neutrality, but that was struck down by a court as beyond its remit, since ISPs weren't common carriers. So the FCC declared that ISPs were in fact eligible for Title II regulation, which effects preemption of state-level regulations. Except the current administration has had the FCC declare that ISPs are not Title II carriers, and therefore FCC has no right to regulate them... which makes it difficult to argue that the federal regulations (which no longer exist) can preempt state regulations.
- 0xfeba 8y ago
  > Since ISPs weren't common carriers Cable ISPs weren't/aren't. Dial-up ISPs have been under Title II since the 90s. That is, net neutrality applies if you access the internet via dial-up, but not via cable/fiber.
  - 0xfeba 8y ago
    Correction -- Dial-up ISPs have been under Title II since the 80s up until 2005.

wpietri 8y ago

What makes you so confident the FCC couldn't win in court? My understanding is that states have some right to additionally regulate, but only to the extent that federal law allows it.

blind_boy_grunt 8y ago
In Tennessee v. FCC, [1] the FCC, under the authority of §706 of the Telecommunications Act of 1996, attempted to preempt state laws that prohibit municipalities from building their own broadband networks under certain circumstances (these laws were obviously lobbied and passed by ISPs in the state legislatures). This was struck down by courts because, although the supremacy clause means that federal law supplants state law, the federal law at hand was so far removed from what the FCC was doing in this particular case, that the FCC was essentially creating "directives" which overruled state law in pursuit of a vague goal that was defined in federal law. In essence, federal administrators/bureaucrats had the power to overrule state law. Although the ISPs "won" in that decision, it cuts both ways -- which means that any attempt by the FCC to preempt net neutrality regulations under §706 is likely to fail as well. Sorry if my take is a little confusing, here is some more coverage: [2], [3]. [1] http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0189p-06.pdf http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0189p-06.pdf [2] https://www.forbes.com/sites/danielfisher/2016/08/10/fcc-loses-bid-to-preempt-municipal-broadband-laws-in-tennessee-n-c/#7e9e24a64e7f https://www.forbes.com/sites/danielfisher/2016/08/10/fcc-los... [3] https://arstechnica.com/tech-policy/2016/08/in-blow-to-muni-broadband-fcc-loses-bid-to-overturn-state-laws/ https://arstechnica.com/tech-policy/2016/08/in-blow-to-muni-...
- Avshalom 8y ago
  Problem is: if New Mexico passes a Net Neutrality law but all of the Netflix data centers are in Arizona it's suddenly going to be "interstate commerce"
  - ashelmire 8y ago
    Something being interstate commerce does not prevent states from legislating on it. Under that logic, states couldn't regulate the sale of anything produced in another state, which is obviously untrue.
    - Avshalom 8y ago
      no it just means that the federal government has constitutional power to over rule it if they feel like it, no need to argue on the basis of any existing case law.
  - blind_boy_grunt 8y ago
    Yes, and congress could pass a law banning net neutrality. But under current law, the FCC is not able to issue a directive doing the same thing. A law banning NN will never get passed due to gridlock (thankfully), so barring some huge change in public opinion I don't see states being prohibited from enforcing NN.
deleted 8y ago
[deleted]
juliangoldsmith 8y ago
States have room to pass whatever regulation they want by default. It only becomes a problem when it conflicts with federal law, in which case federal law always takes precedence.

cavanasm 8y ago

So it's a little more complicated than that? In their repeal, the FCC argued that the FCC had no authority to enact net neutrality or regulate ISPs. Prior to that, the FCC was considered to have had absolute authority over the issue and it was generally felt states had no standing on the issue. So states are seizing on the FCC saying they can't regulate it, while the FCC is now trying to claw back their argument and claim ISPs exist in a regulatory void where no one can regulate them until Congress passes new legislation.

juliangoldsmith 8y ago
>the FCC is now trying to claw back their argument How so? Based on what I've read, I've gotten the impression that the Internet will be primarily regulated by the FTC, instead of the FCC. That would mean that ISPs aren't able to engage in anticompetitive practices, but are pretty free otherwise. I haven't heard anything about states' standing on the issue. Unless there are explicit federal laws saying that the government can't regulate the Internet (which seems unlikely), it's pretty cut-and-dried that states would be able to pass legislation to affect ISPs in their jurisdiction.

jcranmer 8y ago

There's a concept called "preemption" in US law. If a state and the federal government has laws that conflict, federal law wins and the state's law is voided. What this means is that if the federal government wishes to regulate something, it can direct that the states' regulations are circumscribed or voided. The FCC first tried to regulate net neutrality, but that was struck down by a court as beyond its remit, since ISPs weren't common carriers. So the FCC declared that ISPs were in fact eligible for Title II regulation, which effects preemption of state-level regulations. Except the current administration has had the FCC declare that ISPs are not Title II carriers, and therefore FCC has no right to regulate them... which makes it difficult to argue that the federal regulations (which no longer exist) can preempt state regulations.

0xfeba 8y ago
> Since ISPs weren't common carriers Cable ISPs weren't/aren't. Dial-up ISPs have been under Title II since the 90s. That is, net neutrality applies if you access the internet via dial-up, but not via cable/fiber.
- 0xfeba 8y ago
  Correction -- Dial-up ISPs have been under Title II since the 80s up until 2005.