Re Can The States Really Pass Their Own Net Neutrality Laws? Here's Why I Think Yes.

["Dave Farber" <dave () farber net>]

---------- Forwarded message ---------
From: Tilghman Lesher <tilghman () meg abyt es>
Date: Fri, Feb 9, 2018 at 3:33 PM
Subject: Re: [IP] Re Can The States Really Pass Their Own Net Neutrality
Laws? Here's Why I Think Yes.
To: Dave Farber <dave () farber net>


Dr. Farber-

(for IP, if you deem it appropriate)

The EFF makes a good legal argument, here, that the FCC lacks this
authority under the law:

https://www.eff.org/deeplinks/2017/11/verizon-asks-federal-communications-commission-prohibit-states-protecting-user

This is likely to be tested in a court case, so the real answer is, "We'll
see."

On Thu, Feb 8, 2018 at 5:43 PM, Dave Farber <dave () farber net> wrote:

> ---------- Forwarded message ---------
> From: Hasan Diwan <hasan.diwan () gmail com>
> Date: Thu, Feb 8, 2018 at 6:37 PM
> Subject: Re: [IP] Can The States Really Pass Their Own Net Neutrality
> Laws? Here's Why I Think Yes.
> To: dave () farber net <dave () farber net>
>
>
> [for IP, should you wish]
> Perhaps other esteemed subscribers would school me, but my understanding
> is that the Federal government establishes a minimum standard of
> regulation, and the individual states should feel free to exceed them,
> should they wish. This is true of taxation (where you have a federal income
> tax and states place their own taxes on top of this), education, and
> financial regulation. Why not network neutrality as well? -- H
>
> On 8 February 2018 at 04:10, Dave Farber <farber () gmail com> wrote:
>
> > Begin forwarded message:
> >
> > *From:* Dewayne Hendricks <dewayne () warpspeed com>
> > *Date:* February 8, 2018 at 5:39:19 AM EST
> > *To:* Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>
> > *Subject:* *[Dewayne-Net] Can The States Really Pass Their Own Net
> > Neutrality Laws? Here's Why I Think Yes.*
> > *Reply-To:* dewayne-net () warpspeed com
> >
> > Can The States Really Pass Their Own Net Neutrality Laws? Here’s Why I
> > Think Yes.
> > By Harold Feld
> > Feb 6 2018
> > <
> > http://www.wetmachine.com/tales-of-the-sausage-factory/can-the-states-really-pass-their-own-net-neutrality-laws-heres-why-i-think-yes/
> > >
> >
> > We are seeing lots of activity in the states on net neutrality. The
> > Governors of Montana, New York and New Jersey have issued Executive Orders
> > requiring that any broadband provider doing business with the state must
> > certify that it won’t block, throttle, or prioritize any content or
> > applications. Several states are looking at passing legislation applying
> > some version of the 2015 FCC Net Neutrality Rules, with California furthest
> > along in passing something that effectively replicates the pre-2017 rules.
> > All of which raises the question — can the states actually do that?
> >
> > The FCC not only says “no,” but in the 2017 Net Neutrality Repeal Order,
> > the FCC purported to explicitly preempt any state effort to recreate any
> > net neutrality rules. However, as I pointed out back in 2011 when
> > Republican Commissioners wanted to preempt state reporting requirements,
> > the FCC does not have unlimited preemption power. The FCC has to actually
> > have some source of authority to preempt localities. Indeed, Chairman Pai
> > was so insistent that the FCC lacked the authority to preempt state
> > regulation of intrastate communications services that — in a highly unusual
> > move — he refused to defend the portion of the FCC’s Prison Phone Order
> > capping intrastate rates.
> >
> > The critical question is not, as some people seem to think, whether
> > broadband involves interstate communications or not. Of course it does. So
> > does ye olde plain old telephone service (POTS), and state regulated that
> > up to the eyeballs back in the day (even if they have subsequently
> > deregulated it almost entirely). The question is whether Congress has used
> > its power over interstate commerce to preempt the states (directly or by
> > delegating that power to the FCC), or whether Congress has so pervasively
> > regulated the field so as to effectively preempt the states, or whether the
> > state law — while framed as a permissible intrastate regulation —
> > impermissibly regulates interstate commerce (aka the “dormant commerce
> > clause” doctrine). Additionally, certain types of state action, such a the
> > action of the state as a purchaser of services, are exceedingly difficult
> > (if not impossible) to preempt.
> >
> > As always with complicated legal questions, one cannot be 100% sure of
> > how a court will decide. But for the reasons set forth below, I’m
> > reasonably confident that the states can pass their own net neutrality
> > laws. I’m even more confident that a state can decide to purchase services
> > exclusively from carriers that make enforceable pledges not to prioritize
> > or otherwise discriminate against content. Mind you, I don’t think either
> > of these is an effective substitute for federal Title II classification and
> > the 2015 rules. But I encourage states to do what they can and for
> > activists to push for state action in addition to federal action where
> > possible.
> >
> > Interstate Communications, Intrastate Communications, and Mixed
> > Jurisdictional Service.
> >
> > To review the basic principle from Con Law 101, the U.S. is weird because
> > we have a “federalist” system under which states are “sovereign” except for
> > the explicit powers delegated to the federal government in the
> > Constitution. So generally, states can make whatever laws they want about
> > goods or services offered within the boundaries of their states. But one of
> > the powers delegated explicitly to the federal government is to regulate
> > commerce between the states. Additionally, courts have interpreted the
> > Interstate Commerce Clause as prohibiting states from regulating commerce
> > outside their boarders — particularly where this would discriminate against
> > out-of-state services. This gets somewhat complicated, however, because in
> > theory anything a state does will have some impact on “interstate
> > commerce.” So if the constitution prohibited states from doing anything
> > that had any impact on interstate commerce, it would effectively eliminate
> > the states own internal regulatory power — a result that directly conflicts
> > with the whole “federalism” thing. Additionally, even with regard to
> > interstate commerce, we have historic exceptions for states to regulate
> > certain kinds of activities considered intrinsic to the power of the state
> > and/or necessary for public safety.
> >
> > In particular, states get to dictate how businesses operate in their
> > state — even if these businesses offer items “in the stream of interstate
> > commerce.” Nothing stops a state from regulating supermarkets, even though
> > these sell lots of out of state items. Nothing stops a state from
> > regulating car dealerships. Nothing stops a state from regulating how
> > properties get rented — even if it involves Airbnb. But the Commerce Clause
> > does impose some limits. If it wants to, the federal government can preempt
> > state law that is inconsistent with federal regulation of interstate
> > commerce (that is the combination of the Interstate Commerce Clause and the
> > Supremacy Clause).
> >
> > So it’s not enough to simply say that broadband is interstate. So are
> > apples shipped from Washington State to Maryland. That doesn’t stop
> > Maryland from having a lot of say in how apples get sold in Maryland, so
> > long as Maryland doesn’t discriminate against apples grown outside the
> > state and as long as Maryland regulation of the sale of apples doesn’t
> > contradict any federal law on the sale of apples.
> >
> > Moving from the general to the specific, we now turn to broadband and the
> > regulation of communications services in the United States. Congress has
> > created a federal agency, the FCC, that has general jurisdiction over
> > “communication by wire and radio.” So broadband falls in the general
> > jurisdiction of the FCC. But Section 152(b) explicitly recognizes the role
> > of the states in regulating communications and expressly prohibits the FCC
> > from regulating “intrastate communications.” Additionally, we have well
> > over 80 years of history of states regulating how local telephone companies
> > and local cable companies do business within their state. So this isn’t a
> > case where Congress has “preempted the field” as against any state
> > regulation. To the contrary, states traditionally have lots of authority
> > over how they regulate any offering of local service, including an ability
> > to impose non-discrimination requirements.
> >
> > In telecom terms, we call something like broadband a “mixed
> > jurisdictional service.” It has interstate elements and intrastate
> > elements. So unless Congress has either expressly limited state authority,
> > or delegated authority to the FCC to create federal policy in a way that
> > preempts the states, the states can do whatever they want — subject to the
> > usual limitations of the Commerce Clause.
> >
> > [snip]
> >
> > Dewayne-Net RSS Feed: http://dewaynenet.wordpress.com/feed/
> > Twitter: https://twitter.com/wa8dzp
> >
> >
> > --
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