State Authority Under Net Neutrality Order Debated
The FCC’s net neutrality order under Title I leaves room for argument on states’ authority over broadband services, experts said in interviews. Chairman Julius Genachowski is expected to get the votes needed to approve his net neutrality proposal Tuesday. (See separate story in this issue.)
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The scope of state authority under the order remains an open question, said Tony Clark, president of the National Association of Regulatory Utility Commissioners. NARUC has urged the commission to clearly define what constitutes unfair discrimination and reasonable network management, he said. The group also hopes the commission can provide better guidance about broadband regulation, Clark said. There are certain things that federal regulators do well and others that the states do a better job at, he said. If traffic clearly is intrastate, state regulation is consistent with federal regulation, he said.
Broadband reclassification is a bigger question than net neutrality, said Matt Wood, associate director of the Media Access Project. The FCC has created a lot of uncertainties by failing to provide a conclusive answer to the question of what broadband access is or how to treat broadband services, he said. An FCC declaratory ruling in April regarding state authority to collect data from broadband infrastructure and service providers expresses no opinion about whether state commissions have authority, given that broadband is a Title I information service, or whether it would be a good idea for states to collect their own data, said Public Knowledge Legal Director Harold Feld. The FCC would have explicit authority to preempt any state regulation if it reclassified broadband as a Title II telecom service, he said.
If FCC exercises its Title I authority, it can much more easily pre-empt state regulations that are “inconsistent” with the federal exercise, said Randolph May, president of the Free State Foundation. If state regulations such as broadband reporting requirements are much different from federal requirements, they could be viewed as burdensome, he said. As a Title I information service, most broadband service would be viewed as interstate, preempting the states, said Stifel Nicolaus analyst Rebecca Arbogast. Footnotes in the declaratory ruling cited Sections 251 and 253 of the Communications Act, which say they apply to telecom services, and that’s why they're in Title II, Feld said. Applying analysis from the Comcast decision, he said the FCC must show how pre-empting state reporting requirements for Title I broadband services is “reasonably ancillary” to carrying out its responsibilities under Sections 251 or 253.