State Net Neutrality

Abstract

For nearly a century, state regulators played an important role in telecommunications regulation. The 1934 Communications Act gave the Federal Communications Commission authority to regulate interstate telephone service, but explicitly left intrastate calls—which comprised 98% of Depression-era telephone traffic—to state public utility commissions. By the late 2000s, however, as landline telephony faded to obscurity, scholars and policymakers alike recognized that the era of comprehensive state telecommunications regulation had largely come to an end.

Perhaps surprisingly, however, the first years of the Trump Administration have seen a resurgence in state telecommunications regulation—driven not by state institutional concerns, but by policy disagreements over net neutrality. This Article addresses the broader federalism questions raised by this net neutrality clash. Part I provides an overview of telecommunications federalism from the 1934 Communications Act through the present day, looking at the division of federal and state jurisdiction over traditional telephone service, wireless telephony, and information services. Part II examines the various steps that states have taken to regulate broadband providers’ network management practices in response to the Commission’s Restoring Internet Freedom Order and assesses the likelihood that these initiatives will survive a federal preemption challenge. Part III looks more broadly at the question of state authority to regulate broadband network management practices. It discusses the statutory and constitutional limits on state power to regulate broadband providers. Once the sphere of potential authority is defined, Part IV addresses how states should exercise this power and highlights alternative tools available for states that wish to shape the net neutrality debate.