Net Neutrality from the Ground Up

Abstract

In the long-running net neutrality debate, a key assumption has been that broadband and broadband Internet access service are “jurisdictionally interstate.” But are they really? And what does that mean? In practice, the interstate assumption has meant that important decisions about broadband law and policy—whether online content delivery will be akin to the common carrier model of the legacy phone net-work or the entertainment model of the cable television industry, for instance—are made almost exclusively by the federal government.

The “who decides” question took on new immediacy in 2017, when the Federal Communications Commission gutted federal net neutrality rules, and then attempted to preempt the states from adopting their own. Several states nevertheless enacted open network/non-discrimination laws; two of them (in California and Vermont) were promptly challenged on preemption grounds.

This article examines the interstate assumption “from the ground up.” It starts with wires in the ground and radio links to local cell towers, i.e., “last-mile” infrastructure without which there is no broadband Internet access. It arrives at the conclusion that “jurisdictionally interstate” is more of a fictional construct than a factual description, one that expresses unexamined policy choices more than essential network attributes. It concludes by reflecting on alternate ways that federal, state, and local interests might more harmoniously be integrated in light of the network’s physical presence and the state laws which enable that presence.
 

Keywords: broadband, net neutrality, preemption, Internet, federalism, preemption choice, last-mile, infrastructure, subsidiarity, state police power, competition, monopoly/duopoly market power, end-to-end networks, information asymmetry, local access networks