State Net Neutrality Regulations Constitutionally Unsound


Since the Federal Communications Commission (FCC) voted to roll back federal net neutrality regulations last fall, many states have opposed the measure with executive orders, lawsuits, and legislation. All this despite the regulations being fundamentally bad policy, the Internet industry being inherently interstate commerce, and the FCC’s recent order preempting states from passing their own rules mandating net neutrality.

Net neutrality regulations are essentially bans on certain business arrangements among private actors. Many of these arrangements exist in other industries and  benefit consumers by providing more choices.

For example, net neutrality prohibits edge providers from choosing the option of speeding the delivery of their content to end users by paying broadband providers a premium. The government itself engages in this kind of paid prioritization, with  express mail delivery, expedited passport service, and TSA pre-check. (For more detail and examples of why net neutrality regulations are bad policy for consumers, see here.)

Net neutrality regulations are the latest example of federalism, envisioned by the Founders as a protection against states interfering with national markets, becoming a banner for states to hoist as they treat federal laws as suggestions to ignore or oppose. It’s difficult to imagine an industry more obviously interstate than the Internet. It’s hard to overstate the importance of protecting such an important industry from being hobbled by 50 different regulatory environments. Perhaps someone has blocked the U.S. Constitution’s Commerce Clause from the desktops of state lawmakers? (If so, it would be the first real world example of blocking, by the way.)

For the full text of the FCC’s Restoring Internet Freedom Order—which as noted, explicitly bans the states from imposing their own net neutrality regulations—see here.