Of course, there is also a political dimension to states' willingness to take net neutrality actions. To the extent that the residents of states such as Vermont and California feel more strongly in favor of net neutrality protections than consumers in other parts of the country, the states' willingness to enact a rule, risk a federal preemption challenge, and expend public time and resources on enforcement keeps the political issue alive and signals the strength of their interest to national lawmakers, influencing the national debate. In this sense, it is perhaps unsurprising that the primary catalysts of state net neutrality rules are not state public utility commissioners but governors and state legislators. They are directly elected by their constituents and, therefore, are well placed to read their constituents' preferences and communicate them nationally.
But the Dormant Commerce Clause doctrine checks this political activism, to make sure that these states' efforts to register their discontent with federal policy do not unduly burden residents of other states whose preferences differ. It is difficult to predict in advance how courts may resolve Dormant Commerce Clause claims in this context, given the need to develop a robust record of the burdens and benefits of particular state laws and executive actions. But at a minimum, one can say that the various state initiatives are susceptible to a Dormant Commerce Clause challenge.
The FCC is correct that broadband is an inherently interstate service and that traffic management practices are best determined by a national regulator to control the spillover effects that would otherwise occur with state-level action. For states that insist upon taking that power into their own hands, preemption of state net neutrality laws or executive orders will be the first obstacle, and this is where the battle has been joined thus far. But even if the state actions survive a preemption challenge, the Dormant Commerce Clause doctrine will be yet another gauntlet that must be overcome in their quest to undermine the
Restoring Internet Freedom Order
Daniel A. Lyons, a Professor of Law at Boston College Law School, is a Member of the Free State Foundation's Board of Academic Advisors. The Free State Foundation is an independent
nonpartisan free market-oriented think tank located in Rockville, Maryland.
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