The FCC declared that it didn't have authority to regulate net neutrality. When they did, California declared that if it's not in-scope for the FCC, then there's no federal-state conflict in California regulating it themselves.
Parent is saying that California may not have the legal authority to regulate the internet in that way, since some powers are given only to the federal government.
Whether they do or do not have the authority isn't something that can be answered by anything but speculation until it's been tested in court, and I don't think any of the ISPs had enough to gain through packet prioritization that it was worth the risk of going to court.
"Ninth Circuit ruled unanimously in January 2022 that California's net neutrality law may continue to be enforced and cannot be overridden by the FCC as, current as of the decision, Internet services were classified as information services."
There's still one more higher court that can overturn that decision - SCOTUS. They could conceivably rule that no government agency, state or federal, has the ability to enforce such regulations.
That there was a hail mary appeal to the Supreme Court possible that they elected not to pursue does not negate that the issue is clearly not that the broadband ISPs didn’t see “enough to gain through packet prioritization that it was worth the risk of going to court”.
That's fair. SCOTUS is a roll of the dice lately, and there's no way of telling what crazy rulings they might back. As far as I know, though, that ruling hasn't been appealed.
Exactly. Even if their laws only technically apply within California, no car maker is going to build a car that cannot be legally sold in the single largest market in the US. It gets even more difficult with the internet as there are few internet providers who don't have at least some kind of connection to California and therefore fall under its jurisdiction, and ensuring you only apply prioritization to packets that don't involve California is extremely tough.
These emissions regulations don't cover just California, but most of New England, the Pacific, and the mid-Atlantic states as well. I think New York has a way to "fast track" new emissions laws from California, so that the states are kept in sync.
"California cars" were a thing in the early days when emissions were difficult to comply with. Even modern cars come with a "50-state compliant emissions" line item on the window sticker.
If California ratcheted up emissions standards too high, there's the possibility that such segregation could emerge again, particularly when it comes to trucks. There are already several trim levels of trucks that are specific to Texas, because the market there is so big. I could see a truck coming with a sticker that says, "RAM TRX can not be registered or sold in CA, WI, NY, [...] due to emissions restrictions."
> I thought the internet was purely a federal law domain
It is not, there are plenty of state laws that have applied to the internet. On the specific issue of net neutrality, the FCC in 2019 lost in the D.C. Circuit in its attempt to assert that state law regulations for neutrality were preempted, specifically because the repeal rested on them reclassifying in a way which means they don’t have the power to preempt state regulations.
> It looks like this law was challenged on those grounds
It was (EDIT: well, not on the broad “internet is a federal law domain” grounds, but the narrower “net neutrality regulations by the states were preempted by the terms of the FCC neutrality repeal” grounds), by multiple parties, and those challenges failed.
> but the challenge lasted until after Biden was elected and the suit dropped.
No, while the DoJ dropped its case then, the case making the same arguments by the broadband industry continued until the industry participants dropped it after the Ninth Circuit ruled (similar to what the D.C. Circuit had previously), that by reclassifying broadband under Title I in its net neutrality repeal, the FCC had removed its ability to restrict state regulations, which would only exist if it were regulated under Title II.
Why would you think it was a federal law domain? The federal government is technically only allowed to do what is granted in the Constitution. The 10th amendment says anything else is left to the states. Last I checked nothing in the constitution mentioned the internet. Not that the federal government lets that stand in their way.
Like the other comment said, the internet is basically as interstate as a thing can get by design.
The interstate commerce clause is extremely broadly interpreted. It can, for example, be used to prevent a farmer from growing grain on their own farm to feed their own cattle that reside on that very farm(Wickard v. Filburn)
I think Wickard vs Filburn is one of the worst decided cases out there. If I live in California and visit a website hosted in California there is no reason why there should be any interstate commerce involved.
That is possible, but not guaranteed. I don't think the federal government has any authority to regulate the traffic that remains in one state only the traffic that goes through another state. I would also mention that not all traffic would be commerce as well. Going to HN isn't commerce so I don't think the federal government would have any authority even if the traffic crosses state boundaries unless it is genuinely commerce.
Yet it can’t be used to stop California vehicle emission standards, which is why almost all car manufacturers in the US make cars up to California’s higher standards, because they’re so big.
In fairness, while I detest that California's laws become de facto national laws, it doesn't seem appropriate to use the commerce clause there. California isn't trying to regulate interstate commerce, it's not their fault that manufacturers are too cheap to have different models that meet California's standards while having a normal model for the rest of the country.
Not a lawyer, but I found an explanation about why states can pass net neutrality laws. Communication over the internet has both interstate and intrastate components. More on the intrastate component later. The Commerce Clause gives Congress authority to pass legislation to regulate interstate commerce [1]. Congress can also delegate a portion of its authority to federal agencies such as the FCC.
What happens when the FCC chooses to abandon its authority to regulate ISPs? More specifically, what happens when the FCC chooses to deregulate the ISPs by reclassifying broadband from Title II to Title I? Then the FCC cannot preempt state laws regarding telecom unless Congress gave it an authority to do so. In Mozilla Corp. v. FCC, 940 F. 3d 1 (D.C. Cir., 2019), the FCC tried to argue that it could preempt state net neutrality laws [2].
Quoting the page 132 of the case text PDF (which you need to download to ctrl-F, since Justia's PDF viewer messes up whitespace between words) [3][3.5]:
> Third, the Commission points to 47 U.S.C. § 160(e). That provision says that “[a] State commission may not continue to apply or enforce any provision of [the Act] that the Commission has determined to forbear from applying under subsection (a).” Subsection (a), in turn, gives the Commission some flexibility to forbear from regulating technologies classified under Title II. Id. § 160(a).
> That Title II provision has no work to do here because the 2018 Order took broadband out of Title II. So the Commission is not “forbear[ing] from applying any provision” of the Act to a Title-II technology. 47 U.S.C. § 160(e). On top of that, Section 160(e)—as a part of Title I—does not itself delegate any preemption authority to the Commission. People of State of Cal., 905 F.2d at 1240 n.35.
In short, the FCC gave up its authority to preempt state net neutrality laws the moment the FCC reclassified broadband from Title II to Title I.
There's another important point which starts on page 134 and continues to page 135 [3.5]. (If you want to ctrl-F it, you'll have to select just the first few words because page breaks in the PDF obstruct paragraphs.)
> Not only is the Commission lacking in its own statutory authority to preempt, but its effort to kick the States out of intrastate broadband regulation also overlooks the Communications Act’s vision of dual federal-state authority and cooperation in this area specifically.
Meanwhile, back on page 126 [3.5]:
Section 152 of the Communications Act provides, as relevant here, that “nothing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to * * * regulations for or in connection with intrastate communication service by wire or radio of any carrier.” 47 U.S.C. § 152(b). That provision divides regulatory authority “into two separate components: interstate communications, which can be regulated by the [Commission]; and intrastate communications, which cannot.”
Therefore, states actually have Congress's blessing to regulate broadband to some degree: states have authority over communications confined within the respective states.
So what about the Dormant Commerce Clause, which prohibits states from "passing legislation that discriminates against or excessively burdens interstate commerce" [1]? I don't know whether courts have come to an answer about whether state net neutrality laws violate the Dormant Commerce Clause. So instead I'll pose food for thought: To what degree do you think state net neutrality laws burden interstate commerce? Is the burden excessive? Net neutrality means that an ISP can't restrict traffic on the grounds of content, senders, and recipients [4]. What kind of burden does that place on an ISP which offers internet in multiple states?
I don’t know the specifics of federal authority when it comes to internet, but I wouldn’t be surprised if it fell under interstate commerce, which is how they justify federal drug laws.
I can live in California and visit a site in California and my traffic might not leave the state. That is pretty much irrelevant now that Wickard v. Filburn is a thing though.
Internet communications which exit/enter the state do, but there's still the issue of communications which stay within the state. The states have Congress-given authority to regulate intrastate (not interstate) internet communications. Moreover, by reclassifying broadband from Title II to Title I, the FCC gave up the part of its authority that allowed it to preempt state net neutrality laws. I wrote more on this technicality in a different comment [1].
Even when conduct could Constitutionally be regulated by the federal government under the Commerce Clause, that doesn't preclude state regulation unless Congress has (1) specificallly regulated that states may not regulate, or (2) has regulated in a way which the State regulations at issue would fundamentally conflict with.
So, yes, the internet is Constititionally a thing the federal government can regulate, but that doesn't make it Constitutionally a thing state governments can not regulate.
I can live in California and visit a site in California and my traffic might not leave the state. That is pretty much irrelevant now that Wickard v. Filburn is a thing though.