Network neutrality and the return of state regulators

[Commentary] In the heady days of the Bell monopoly, state regulators reigned alongside the Federal Communications Commission as co-sovereigns, setting the rates and terms of service for intrastate communications, which many considered more essential than long-distance. But as the Internet replaced the telephone system as America’s primary telecommunications network, state authority receded. The FCC classified broadband as an information service and largely preempted state regulation. State regulators may not have disappeared completely, but it appeared that, like local newspapers, they were destined for a much more circumscribed role in the Internet age. But a funny thing happened on the way to the Open Internet order. The FCC’s effort to turn back the regulatory clock by 20 years may have breathed new life into state public utility commissions.

If the Internet is not a revolutionary new network, but simply the next iteration of a Title II telecommunications system, then states may be justified in claiming the co-regency that Congress intended for them to wield over the intrastate aspects of Title II networks. There remain two fairly significant sources of potential authority for states within the statute. First, Section 332 allows states to regulate “other terms and conditions” of commercial mobile radio service (CMRS). Second, the court’s blessing of Section 706 in Verizon v FCC as a source of regulatory authority applies to states as well as federal regulators.

On balance, greater state regulatory oversight of broadband service is likely to do more harm than good.

[Lyons is an associate professor at Boston College Law School]