Can the FCC Really Block California's Net Neutrality Law?

Does California have authority to impose net neutrality rules? Both the US Department of Justice and the broadband industry claim that the inherently interstate nature of the internet means that only the federal government can regulate broadband services. A second, even thornier question is whether the Federal Communications Commission was within its rights when it effectively banned states from adopting net neutrality rules. At its heart is this conundrum: In repealing the Obama-era rules, the FCC said it didn’t have authority to impose net neutrality regulations. But the agency now claims it does have the authority to ban states from adopting their own rules.

"It's hard to find a case that's perfectly, squarely applicable, where an agency says 'we're vacating the field, and we're not allowing anyone else to enter the field,’" says Marc Martin, a former FCC staffer during the presidency of George H.W. Bush who is chair of law firm Perkins Coie's communications practice. "Usually you have preemption where there is a federal rule and a state tries to enact an incompatible rule," says Pantelis Michalopoulos, a lawyer with the firm Steptoe & Johnson who is representing net neutrality advocates in a federal lawsuit against the FCC. "You're in a much weaker position when you try to preempt a state rule where there is no federal rule."