Net Neutrality and the Future of State Broadband Regulation

Once Democrats finally secured a 3-2 majority in the Federal Communications Commission, the agency lost no time in approving a long-anticipated proposal to reintroduce net neutrality by reclassifying broadband providers as common carriers. While its commitment to reclassification seems unwavering, the agency has equivocated about the preemptive effect of agency action. This nuanced shift raises important questions about what role, if any, state authorities will play in future Internet governance. In the 1990s and 2000s, state public utility commissions largely exited the telecommunications world, leaving policymaking to occur mostly at the federal level. But there has been a rejuvenation in state broadband regulation since 2016, not because of a belief that states have a unique role to play, but as a vector for opposition to the Trump administration. In the FCC's current proposal on net neutrality, the agency asks for comment about “how best to exercise our preemption authority to ensure that [broadband] is governed by a national, uniform framework.”

[Daniel Lyons is a nonresident senior fellow at the American Enterprise Institute, where he focuses on telecommunications and internet regulation. He is also the associate dean of academic affairs and a professor of law at Boston College Law School, where he teaches telecommunications, administrative, and cyber law.]