On June 11 of this year, the FCC came out with their ludicrously named “Restoring Internet Freedom Order,” which, among other things, repealed the open internet regulations adopted by the FCC just three years ago in 2015. In the wake of this catastrophic move, which was opposed across party lines, many states have rushed to create their own net neutrality legislation. Some have put executive orders in place as a stopgap until real legislation can be passed, but the first state to pass real net neutrality protections was California on Sept. 30. The Trump administration’s Department of Justice promptly sued California, stating that imposing any such legislation was illegal because the federal government had adopted a “policy of non-regulation.”
Before we get into the legality of California’s regulations and the DOJ’s lawsuit, I want to talk about the regulations themselves. California SB-822 is the strongest set of net neutrality regulations in the nation’s history. It includes all of the regulations from the 2015 open internet order, and more, perhaps most notably a no-zero-rating policy, restricting the practice of internet providers giving users free data to access a particular service, as T-Mobile has in the past not counted Netflix data towards their users’ data caps. In an age when internet service providers have effective monopolies over huge swaths of the country while at the same time so many get their news or shop only through the internet, ensuring that those providers treat all traffic equally is an absolute necessity. California’s regulations are a shining beacon on the path to that goal.
The DOJ’s lawsuit against California is beyond ridiculous, and while I will attempt to explain the reasons why here, I am not a lawyer, and I implore you to look at the statement put out by the Electronic Frontier Foundation and the amicus curiae brief put out by Stanford CyberLaw for a far better view of just why the DOJ and FCC can’t do what they’re trying to do. In short, the FCC is trying to have their cake and eat it too. They have repealed their regulations federally, which, as is well-established, allows states to create their own regulations. This conclusion can be easily reached by drawing logical conclusions from Article VI Clause 2 and the Tenth Amendment of the United States Constitution, which state respectively that federal regulations override state regulations and that powers not given to the federal government and not withheld from the states are left to the states — If the federal government chooses not to create a policy and the states are not forbidden by the Constitution from creating such a policy, the states are perfectly within their rights to do so. If you don’t like that argument, how about some precedent? New York v. FERC is a good example. To make a long story short, unless the FCC or Congress somehow creates a regulation that bans regulation, the states are perfectly within their rights to create regulation of their own.
I haven’t even mentioned the fact that the verbal arguments given by the likes of Ajit Pai, Chairman of the FCC, are self-defeating. On different occasions, Pai has argued both that the FCC does not have the legal authority to create net neutrality regulations and that only the federal government has the legal authority to create net neutrality regulations. It strikes me that all those “states’ rights” advocates only ever seem to speak up when the federal government is trying to stop states from oppressing minorities, but never when the federal government is trying to stop states from doing the good things the feds should’ve been doing in the first place.
Be First to Comment