Casting a Wide Net: The Federal Communication Commission’s Preemption of State Broadband Internet Regulation

Abstract

In 2018, the FCC abruptly reversed course in the federal scheme for regulating the Internet. With its “Restoring Internet Freedom Order,” the FCC re-reclassified broadband Internet as an “information service,” and thus found it has no statutory authority to impose the net neutrality rules promulgated an earlier FCC in 2016. Nonetheless, the agency included a provision preempting state net neutrality laws or regulation. But it did so relying only on broad grants of regulatory authority and congressional policy. And in judicial review of that Order, the D.C. Circuit vacated the preemption portion of the Order, upholding the remainder of the administrative action. I argue that the FCC’s Order is a timely example of a modern administrative agency relying on expansive and broad statutory authority to preempt state law and getting it wrong. Doing so threatens to destabilize the already delicate balance of federalism implicated when the federal government implements its constitutional authority to preempt state law. Not only did the agency preempt state law after finding no statutory authority to impose the very laws it was preempting but arguably it relied on a broad reading of its delegated authority to do so. When exercising the power of preemption, special care is required for agencies no less Congress. This order simply does not pass muster. Ultimately, I argue the analysis the agency presented is informative as to the implications of the modern administrative state with federalism concerns.