Supreme Court Raises Red Flags on Pre-emption

The US Supreme court has declined to overturn two lower court rulings that MN was preempted from regulating Charter Communications’s interconnected voice-over-internet protocol telephone service because the courts were convinced the operator had made the case for why it was an information service, not a telecommunications service, even though the Federal Communications Commission has yet to classify interconnected VoIP either way. That sounds like it would buttress the FCC’s assertion it can pre-empt state efforts to reregulate internet access, which the agency has definitely classified as an information service. But there was an accompanying concurring statement from two of the justices, and a recusal by the chief justice, that suggest the agency’s case for pre-emption could be dicey if it reaches the High Court.

If the FCC does challenge the DC Circuit’s ruling that the agency’s pre-emption of state efforts to reregulate broadband was overbroad, look for opponents to attack that underlying theory. Benton Senior Counselor Andrew Schwartzman, who argues against the FCC’s pre-emption assertion, warned the concurrence had no precedential value and was only from two justices. But he said it does show the potential difficulties the FCC could run into trying to pre-empt on the basis of “nonregulation.”