In response to the Federal Communications Commission’s vote to overturn net neutrality, many state and municipal governments have publicly stated their plans to reinstate net neutrality policies. Following December’s 3-2 vote, the FCC began working to institute a policy which will allow for internet service providers to provide customers with accelerated internet speeds for steeper monetary rates. Already state legislation in California passed the Senate, which actively seeks to bring back net neutrality policies in the golden state.
Normally, this type of state-vs.-federal power struggle draws from a set of precedents, from which appellate courts compile a ruling; however, since the internet is still in its adolescence—from a federal regulations standpoint, at least—this plops the debate, yet again, into uncharted waters. Can states and municipal governments undermine federal authority in their push for net neutrality?
Well, the courts will likely focus on several key factors when examining the legality of the ongoing cyber-tug-o-war. Firstly, FCC Chairman—currently the most-hated man on internet forums everywhere—Ajit Pai stipulated within the 3-2 ruling that state and municipal government would be preempted from enforcing neutrality. Now, the legality of this preemption has not yet been fully determined, as more than twenty states filed suits to contest the constitutionality of the FCC’s vote, as well as its preemptive provisions. Some of these suits argue that the FCC misinterpreted the Communications Act, a piece of federal legislation integral to this entire debate. In challenging the FCC’s ruling, the states plan to make a case based on the FCC abusing their federal powers to arbitrarily make money.
Now that California has passed a bill to reinstate net neutrality, this opens the door for the FCC to sue the state. In addition to California’s bill, Montana and New York signed executive orders into action, both of which similarly plan to subvert the FCC’s dismantling of net neutrality. Legislators and state executive officer may have jumped the gun here though, allowing for the FCC to sue these states for ignoring the federal preemption.
Both sides now legally possess grounds for legitimate cases against each other, which means there’s going to be a whole lot of messy bureaucracy for months to come. It also marks the falling of yet another domino in the increasingly politicized saga of internet regulation. The federal government vs. state powers, democrats vs. republicans, plants vs. zombies—all will be affected when the final tile falls. For now, it appears this decision could one day make it to the Supreme Court, should states continue to resist federal regulations. If it does, the issue will likely result in justices ruling along party lines. The Democrats push for internet rights, much like power or gas in a home, while Republican view regulation as a death stroke to online investment and entrepreneurship.
Ultimately, this comes down to a philosophical break amongst key politicians: whether the government’s job is to allow maximum opportunity for a few to capitalize on, or to improve quality of life for as many as possible. Increased economic opportunity for some, or many. Although the FCC will fight for internet service providers to thrive, the democratic law-makers currently pushing back seem to be united in a philosophy best articulated by former President Obama, back in 2014, “For almost a century, our law has recognized that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access into and out of your home or business. It is common sense that the same philosophy should guide any service that is based on the transmission of information—whether a phone call or a packet of data.”