Justice Thomas, preemption, and state net neutrality

In late October, the Supreme Court quietly declined to review Lipschultz v. Charter Advanced Services, an Eighth Circuit decision that preempted state regulation of fixed Voice-over-Internet-Protocol (VoIP) service. While concurring in the denial of certiorari, Supreme Court Justice Clarence Thomas wrote separately to challenge the underlying theory of federal preemption, noting that “it is doubtful whether a federal policy — let alone a policy of nonregulation — is" sufficient to establish conflict preemption. Other than recent network neutrality efforts, states have generally avoided regulating information services precisely because of the Federal Communications Commission’s two-decade-long policy of nonregulation. Justice Thomas has challenged this dynamic — but importantly, his specific objection does not apply to the conflict preemption argument at issue in the state net neutrality cases. Justice Thomas’s primary objection is not a telecommunications law issue, but rather an administrative law one. Justice Thomas noted that because agency policies do not themselves determine rights or responsibilities, they are not “final agency action” sufficient to support a conflict preemption claim.