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FCC claims it can pre-empt state Net Neutrality rules

by on11 September 2018

Assures telcos they can still throttle

A court ruling that limits state regulation of cable company offerings was praised by Federal Communications Commission Chairman Ajit Pai.

Pai said that the ruling supports his contention that the FCC can pre-empt state level net neutrality rules.

The new court ruling found that Minnesota's state government cannot regulate VoIP phone services offered by Charter and other cable companies because VoIP is an "information service" under federal law.

Pai argues that the case is consistent with the FCC's attempt to preempt state-level net neutrality rules, in which the commission reclassified broadband as a Title I information service instead of a Title II telecommunications service.

The ruling was issued Friday by the US Court of Appeals for the 8th Circuit, following a lawsuit filed by Charter Communications against the Minnesota Public Utilities Commission (MPUC).

A three judge panel ruled against Minnesota in a 2-1 vote -- the FCC had filed a brief supporting Charter's position in the case.

"Federal law for decades has recognised that states may not regulate information services", Pai said in response to the ruling.

"The 8th Circuit's decision is important for reaffirming that well-established principle: Any state regulation of an information service conflicts with the federal policy of non-regulation' and is therefore pre-empted."

Pai said the ruling "is wholly consistent with the approach the FCC has taken under Democratic and Republican Administrations over the last two decades, including in last year's Restoring Internet Freedom order".

The commission says the reclassification should pre-empt any such attempts at regulating broadband at the state level.

However, that may not be the case. Ars Technica pointed out that the net neutrality case is being handled by the US Court of Appeals for the District of Columbia Circuit.

Attorney Andrew Schwartzman, who represents the Benton Foundation in the case against the FCC said that the details are different too.

In the net neutrality case, "Pai’s FCC definitively said that it has no jurisdiction under either Title I or Title II [of the Communications Act] to regulate broadband Internet access service. As the governmental parties explained when an agency lacks authority to regulate, it lacks authority to pre-empt".

The VoIP case also differs from the net neutrality case in that there was "no FCC decision at issue" because "the FCC has repeatedly refused to decide what regulatory classification... should be applied to VoIP", Schwartzman said. "Thus, it was left to the court to consider the question in a case between the state and Charter."

Last modified on 11 September 2018
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