Court: States Can Enforce Net Neutrality

Californian laws requiring "net neutrality" have been found lawful by an appeals court. As so often on the topic, the legal argument is as much about who has the power to make laws as it is the legal measures themselves.

While precise definitions vary between people with different viewpoints, the most common definition of net neutrality is the principle that all Internet traffic (except that carrying illegal material) should be treated equally.

One of the key issues for that principle in practice is whether Internet carriers can give priority to connections to specific sites or intentionally slow down access to other sites. Real world cases of net neutrality disputes include mobile carriers who have data caps for subscribers but don't count downloads or streaming from specific sites, and broadband carriers who slow connections that use peer-to-peer file sharing, such as torrents.

Federal Vs State Battle

Net neutrality has long been a contentious issue on a federal level. The Federal Communications Commission (FCC) used to have net neutrality rules but dropped them in 2017. The following year it said broadband should be treated as an "information service" rather than a "telecommunications service" which means it comes under lighter regulation. (Source: webwewant.org)

While that means the federal position is that net neutrality should be dealt with by Congress passing laws rather than the FCC making rules, the debate has now switched to state versus federal powers.

In 2018, California passed a state law that replicated the measures in the FCC's former rules, applying them to broadband provision in the state.

Several communications companies challenged the law, arguing it was invalid as it would inappropriately override a federal position (namely that net neutrality rules meant inappropriately heavy regulation for broadband).

FCC Left Regulatory Vacuum

Both a district court and a federal appeals court have now rejected that challenge. The latest ruling noted that "only the invocation of federal regulatory authority can preempt state regulatory authority." (Source: theregister.com)

In both cases, the judges concluded that the FCC reclassification of broadband as an "information service" means it no longer has that regulatory authority in many areas, including whether or not to enforce net neutrality. That left it fair game for states to enforce locally.

As always with disputes about who has what legal authority, the case could wind up in the Supreme Court.

What's Your Opinion?

Do you broadly favor enforcing net neutrality? Should it be down to Congress, the FCC or states to decide? Is it practical to have different rules in different states?