Justice Thomas’s Concurrence Says Much—and Little—About Preemption of State Net Neutrality Efforts

Abstract

A little-noticed concurrence in denial of certiorari by Justice Clarence Thomas may have caused a wrinkle in the ongoing net neutrality debate. Late last month, the Supreme Court quietly declined to review Lipschultz v. Charter Advanced Services (MN), LLC, an Eighth Circuit decision preempting state VoIP regulation. While concurring in the denial, Justice Thomas raised concerns about the underlying theory of federal preemption, noting that “[i]t is doubtful that a federal policy – let alone a policy of nonregulation – is” sufficient to support conflict preemption.

Justice Thomas’s concurrence – joined by Justice Neil Gorsuch – casts an interesting shadow on the debate over preemption of state net neutrality efforts. Until recently, states have refrained from regulating most information services, in part because of the long tradition of treating information services as an exclusively federal, and mostly deregulated, domain. But when one looks further, it’s clear that Thomas’s primary objection is not a telecommunications law issue, but rather an administrative law issue. Thomas noted that because agency policies do not themselves determine rights or responsibilities, they are not “final agency action” sufficient to support a conflict preemption claim. While he is correct about the federal policy of nonregulation, this objection does not preclude the FCC from arguing that laws like California’s net neutrality law conflict with the Restoring Internet Freedom (RIF) Order, which is final agency action. That said, other language in the concurrence suggests that Thomas may not support the specific arguments the FCC is likely to offer to support its theory of conflict preemption – which is not a surprise given Thomas’s prior jurisprudence, nor is it necessarily fatal to the FCC’s claims.