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What Happens When States Have Their Own Net Neutrality Rules? (bloomberg.com)
Last month FCC Chairman Ajit Pai dismantled Obama-era rules on net neutrality. A handful of lawmakers in liberal-leaning U.S. states plan to spend this year building them back up. FCC anticipated the move -- the commission's rules include language forbidding states from doing this, warning against an unwieldy patchwork of regulations. But lawmakers in New York and California aren't aiming to be exceptions to the national rules; they're looking to, in effect, create their own. From a report: In New York, Assemblywoman Patricia Fahy introduced a bill that would make it a requirement for internet providers to adhere to the principles of net neutrality as a requirement for landing state contracts. This would mean they couldn't block or slow down certain web traffic, and couldn't offer faster speeds to companies who pay them directly. Fahy said the restrictions on contractors would apply even if the behaviors in question took place outside New York. She acknowledged that the approach could run afoul of limits on states attempting to regulate interstate commerce, but thought the bill could "thread the needle." Even supporters of state legislation on net neutrality think this may go too far. California State Senator Scott Wiener introduced a bill this week that would only apply to behavior within the state, saying any other approach would be too vulnerable to legal challenge.
But this wouldn't be the first time a large state threw around its weight in ways that reverberate beyond its borders. The texbook industry, for instance, has long accommodated the standards of California and Texas. [...] The internet doesn't lend itself cleanly to state lines. It could be difficult for Comcast or Verizon to accept money from services seeking preferential treatment in one state, then make sure that its network didn't reflect those relationships in places where state lawmakers forbade them, said Geoffrey Manne, executive director of the International Center for Law & Economics, a research group.
But this wouldn't be the first time a large state threw around its weight in ways that reverberate beyond its borders. The texbook industry, for instance, has long accommodated the standards of California and Texas. [...] The internet doesn't lend itself cleanly to state lines. It could be difficult for Comcast or Verizon to accept money from services seeking preferential treatment in one state, then make sure that its network didn't reflect those relationships in places where state lawmakers forbade them, said Geoffrey Manne, executive director of the International Center for Law & Economics, a research group.
The preemption doctrine has been around for a long time, and has been consistently upheld by the Supreme Court: once the feds decide to regulate, states may also regulate only to the extent and in ways that Congress specifies. With the default case being, if Congress doesn't specify, the states can't regulate.
For example, the Clean Air Act explicitly gives California authority to set tougher-than-federal emission standards for some things (cars in particular) -- it's right there in the statute. Other states are given authority to choose between the federal standard or the California standard where they are different, but no other state can make up its own standard.