Net Neutrality Decision Ramifications Divide Along FCC's State Preemption Authority

Friday. Patrick Halley, USTelecom senior vice president-advocacy and regulatory, and Gigi Sohn, a former aide to then-Chairman Tom Wheeler, discussed Chevron, Brand X, state vs. federal jurisdiction over broadband, and other details. Halley noted that the court ruled the FCC was within its discretion to regulate broadband as an information service, and while the court said the FCC can't expressly pre-empt state laws on the matter, "it would be an over-reach to say states can write their own laws," especially as much of internet use is interstate, not intrastate. Sohn suggested the FCC has abdicated its authority to regulate the broadband market: "The court was really clear: If an agency lacks authority, it can't then tell a state it can't regulate." Sohn was not suggesting states would have an easy time, but nor will industry, in determining when states can regulate over issues of net neutrality: "It will be case by case. It won't be a slam dunk." With the recent court decision, states will test the boundaries, she said, "and to me that argues for a federal law." Halley "completely" agreed with the need for a federal law, and said the sides likely agree on the concept of net neutrality as well. "The best answer for all of this is a federal, modern national framework that provides the net neutrality protection" that most consumers and businesses want. When it comes to one of the issues that the court remanded to the FCC, on how it will regulate broadband in the USF Lifeline program, the court said only that the agency did not sufficiently address the matter in its arguments, Halley said, not that it lacks such authority. Last week, the court upheld most of a 2017 FCC net neutrality repeal but remanded several matters to the FCC for clarification (see 1910010018).