The FCC voted in 2015 to preempt state restrictions in Tennessee and North Carolina against municipal broadband [1][2], in response to a petition brought by the cities of Chattanooga, TN and Wilson, NC. This was struck down by the Sixth Circuit in 2016 [3].
It's going to be interesting to see this idea tested again.
Funny, I was listening to oral arguments on the Supreme Court last night on the way home from work. I'm not a lawyer, but my layman interpretation of what they were arguing (specifically in reference to sports betting) is that if the federal government chooses not to regulate something, they cannot also preempt state regulations.
I reserve to right to have completely misunderstood the legalese that I was hearing :)
I believe the 10th Amendment covers what you are thinking of.
>The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If the Federal government chooses not to regulate it, then the states should be allowed to do so.
Edit: Here the FCC is choosing to not regulate Telecoms as "Common Carriers", so would not the states then be allowed to do so, barring other federal agencies that may be able to regulate "Common Carriers" (ala the FTC)? Honest question.
The 10th Amendment is not well regarded by the Supreme Court. In US v Sprague the Court said it “added nothing to the [Constitution] as originally ratified“.
Additionally, I think one could easily argue that the interstate commerce clause would prevail as States attempting to regulate interstate commerce. Otherwise, they could only enforce net-neutrality on connections entirely contained within their own state (good luck showing that's the case).
A lot of Services are headquartered in California: Apple, Facebook, Google, Netflix, Hulu, Yahoo, Dropbox, Reddit, Imgur et al. These services could well band together and lobby very influentially to regulate neutral access to all in-state broadband traffic. I don't think it would be very smart for the telecoms to push their tier garbage in California.
Given that the FCC only recently lost a court case about its authority to preempt state laws banning muni broadband, how would this situation be any different?
Because this one would serve the interests of the rich and well connected?
I tend to agree that the FCC probably won't be able to ban states from enacting their own form of net neutrality, but I've seen the courts side with business interests with weak arguments more times than I'd like.
Not a lawyer but I believe a lot of the argument there hinged on municipalities legally being creations of the states, with only the powers the states choose to give them.
Courts are wary of letting the federal government regulate how states organize themselves.
It's going to be interesting to see this idea tested again.
[1] https://www.fcc.gov/document/fcc-releases-order-preempting-t... [2] https://arstechnica.com/information-technology/2015/02/fcc-o... [3] http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0189p-06.pdf