Small Calif. ISPs Want FCC To Curb State Net Neutrality Laws

Jan 24, 2024

By Ted Hearn, Editor of Policyband

Washington, D.C., Jan. 24, 2024 – How far will federal regulators let the states go?

As the Federal Communications Commission prepares to adopt Net Neutrality regulations, the agency will need to decide whether the states can go about adopting and enforcing their own Net Neutrality laws.

Some want the states kept on a short leash; others, invoking federalism, see a limited role for federal regulators.  The FCC has yet to take a stand.

The issue before the FCC boils down to a simple question: Will its rules act as a floor or a ceiling on state action?

The issue is pitting a coalition of small telephone companies in California against their state’s top utility regulator.

The telcos – which are also Internet Service Providers (ISPs) – are actually fine with the FCC’s moving ahead with Net Neutrality, which would, among other things, prevent ISPs from blocking and throttling online content.

But what these ISPs don’t want is to see states add to the FCC’s Net Neutrality rules with their own versions of Net Neutrality that pile on the regulations. They want the FCC’s rules to be a ceiling that puts lid on state freelancing.

In a recent meeting with an aide to FCC Commissioner Brendan Carr, the California Independent Small LECs requested “strong preemption language … to prevent disparate and accelerating state regulations of BIAS [Broadband Internet Access Service].”

They added that they preferred to see “state preemption language that will avoid a ‘patchwork” of state regulations that would undermine the uniformity goals” of the FCC’s Net Neutrality proposal released last October.

The ISPs’ coalition includes Calaveras Telephone Co., Kerman Telephone Co., Pinnacles Telephone Co., and their ISP affiliates.

On the other side of the issue is the California Public Utilities Commission, which regulates the companies that formed the California Independent Small LECs, which is an ad hoc organization and not a formal association.

CPUC, in an FCC filing last week, made the case for providing states with latitude if they develop their own Net Neutrality rules.

“The FCC should establish the federal framework as a floor, providing open Internet protections to everyone, but allow states to adopt their own requirements that are not inconsistent with the FCC rules,” the CPUC said. “The FCC has no basis for proactively preempting state rules when they do not conflict with federal policy.”

In 2018, California lawmakers passed a Net Neutrality law months after the FCC vote to dismantle Net Neutrality regulations adopted in 2015 under Democratic FCC Chairman Tom Wheeler. After California passed the law, FCC Chair Jessica Rosenworcel, at the time a regular FCC Commissioner, applauded the state for filling the gap left by the FCC.

“California’s Net Neutrality law is entirely consistent with the FCC’s expressed goals of ensuring Internet openness, safeguarding national security, protecting public safety, and supporting other public interest goals,” the CPUC said.

In its proposed Net Neutrality rules, the FCC did not take a firm stand on state preemption, saying it wasn’t sure whether it should act broadly in limiting states or review state Net Neutrality rules on a case-by-case basis.