State Net Neutrality Mandates and the Dormant Commerce Clause

Abstract

The latest twist in the net neutrality debate has prompted a renewed interest in regulatory federalism. Opponents of the Federal Communication Commission's Restoring Internet Freedom Order (RIF Order) have turned to state governors' mansions and legislatures, seeking to restore at the state level regulatory restrictions that the Commission repealed at the federal level. To date, six states have adopted executive orders and four have passed statutes that purport to impose net neutrality mandates on broadband providers.Most commentary on state net neutrality has focused on whether the RIF Order preempts these state-level initiatives – an issue I addressed in an earlier FSF Perspectives article. But there is a second, less-often discussed limitation on state power to regulate broadband network management practices: the Dormant Commerce Clause. The Dormant Commerce Clause doctrine prevents states from imposing undue burdens on interstate commerce. Previous courts have relied on this doctrine to limit state attempts to regulate online conduct. The Internet is a national (indeed, global) network, meaning that state attempts to regulate the flow of traffic on that network are likely to have extraterritorial effects that burden interstate commerce. As a result, claims that these rules contravene the Dormant Commerce Clause could well prove a difficult obstacle for state attempts to resurrect net neutrality restrictions.