Eliminating Net Neutrality, FCC Plans Battle With State and Local Authorities

The Federal Communications Commission

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Connecting state and local government leaders

Language in the net neutrality repeal sets the groundwork for an attempt to aggressively constrain and eliminate state and local regulations.

Prior to the Federal Communications Commission’s vote to repeal net neutrality protections that keep internet service providers from favoring certain traffic over others, a coalition of mayors from 68 U.S. cities sent Chairman Ajit Pai a letter opposing the action.

In the letter they stated:

The Commission’s proposal prohibits local leaders such as ourselves from protecting our constituents, businesses, and economies from abusive service provider practices. While the Commission’s proposal appears content to let harms occur and trust the FTC to remedy those harms after the fact, some of our communities prefer local solutions to challenges facing our communities. The Commission’s effort to preempt here, even aside from its serious legal deficiencies, represents a stark, inexplicable, and unwarranted attack on ‘the constitutional principles that lie at the heart of our system of government.’

When the FCC went forward with repealing net neutrality rules on Thursday, they included frank warnings to state and local officials not to cross the commission’s deregulatory agenda, as well as sweeping preemption language that will likely set off a multitude of legal battles in 2018 challenging federal authority.

The FCC’s net neutrality repeal, titled the “Restoring Internet Freedom” order, includes a section outlining “Preemption of Inconsistent State and Local Regulations,” which states that the FCC decided “we should exercise our authority to preempt any state or local requirements that are inconsistent with the federal deregulatory approach we adopt today.”

Republican Commissioner Michael O’Reilly made it clear in his prepared remarks that the FCC would be closely watching state and local action—and pushing back hard when it felt they were outside the framework of the deregulatory agenda being promoted by the FCC.

While he acknowledged that the order allows for an “extremely limited state role in enforcing their traditional police powers,” O’Reilly stated that “state actions that go beyond this realm will be subject to scrutiny and challenge.”

O’Reilly went on to specifically mention that “states may not adopt their own transparency requirements” and that he views “state broadband privacy actions as outside the scope of what is permissible.” O’Reilly also stated “any action to increase burdens on broadband providers would run directly counter to our efforts,” and committed to working “closely with the Chairman and [Office of General Counsel] to quash any conflicts that arise.”

State and local governments are responsible for a wide range of wired and wireless broadband infrastructure and policies. That includes responsibilities like consumer protection, certain public disclosures, preventing broadband companies from only providing service to wealthy areas, review of wireless towers to meet zoning and structural standards, and maintaining and regulating publicly-owned rights of way for broadband wires among the tangle of utility pipes that snake beneath public streets.

Several state attorneys general have said they intend to challenge the net neutrality repeal. In an interview on MSNBC’s All In With Chris Hayes last week, New York State Attorney General Eric Schneiderman, one of the first to say he will challenge the order, said he was suing because the FCC “broke, essentially, all the rules of civil procedure.” Earlier in the process, Schneiderman tried to investigate hundreds of thousands of fake comments submitted to the FCC, often using real people’s identities.

Boston’s chief information officer, Jascha Franklin-Hodge, told Route Fifty that his city and others across the country are also looking at the implications from a legal standpoint. “The language itself is not exactly clear and concise in its scope and impact. My understanding is that even the Republican commissioners voting for this order couldn’t agree amongst themselves what this language actually meant,” Franklin-Hodge told us. Boston Mayor Martin “Marty” Walsh was a leader of the coalition of 68 mayors who sent the letter opposing the repeal to FCC Chairman Pai; the coalition may continue the fight against FCC moves to limit local authority moving forward.

Multiple sources have told Route Fifty they expect the FCC’s 2018 agenda to include a significant focus on preempting state and local government’s role when it comes to wireless broadband infrastructure, such as cellular towers and new “small cell” 5G wireless equipment. The Senate is also considering the SPEED Act (an acronym for “Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure Act of 2017”), which would further empower the FCC and limit state and local government’s authority to review and control of 5G broadband equipment in publicly-owned spaces.

Angelina Panettieri, a technology and communications advocate for the National League of Cities, believes the language in last week’s order is just a signal of what’s to come.

“I think this is really just an intermediary step on a longer pathway of preempting state and local regulation, especially local regulation to remove any sort of regulatory oversight over wireless,” Panettieri said in an interview with Route Fifty. “What we’re worried about is that after the order passes, [internet service providers] are going to use this as their legal standing to challenge any other sort of local regulation, even things that have been very traditional like land-use regulation, and siting review, and negotiations over service provisions, preventing red-lining.”

State and local governments will have a fight on their hands going forward to avoid further deterioration of their regulatory and consumer protection powers. In his remarks, O’Reilly stated that “Given my druthers, I would actually go even further on preemption, but I could only carry the debate so far today.”

Route Fifty has previously covered Pai’s Digital Empowerment Agenda, which pairs tax and wireless spectrum incentives with preemption of state and local government power. As Pai stated in 2016: “Congress gave the Commission the express authority to preempt any state or local regulation that prohibits or has the effect of prohibiting the ability of any entity to provide wired or wireless service. We should use it.”

Based to his experience in Boston, Franklin-Hodge is skeptical of the FCC agenda and its ability to enact it. “The idea that the FCC can and should have absolute authority over all aspects of what takes place in communities across this country is not one that aligns with the expectations of our residents or with the many other people who rely on the cities and states in which they live to advocate for their interests, and I think we will see, as we have during the net neutrality debate, increasing resistance to the kind of federal overreach that the Chairman and several of the other commissioners seem to be advocating for.”

Mitch Herckis is Senior Director of Programs for Government Executive’s Route Fifty and is based in Washington, D.C.

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