Express and Conflict Preemption in State Net Neutrality Efforts

Abstract

For the fourth time in the past decade, the D.C. Circuit is considering the Federal Communications Commission's regulation of broadband network management practices. And while the case is captioned Mozilla v. FCC, twenty-two states and the District of Columbia have joined the petition for review. Their participation highlights an important aspect of the case not foreseen by most pundits when the Commission's Restoring Internet Freedom Order ("RIF Order") was adopted: whether policymakers may reimpose at the state level regulations repealed by the federal government.

The RIF Order expressly preempted state efforts to regulate net neutrality, and the states in turn have challenged this provision. If upheld, the RIF Order's preemption provision likely dooms most state net neutrality initiatives. But importantly, even if the court rejects the agency's express preemption arguments, conflict preemption principles are likely to invalidate state efforts that upset the carefully-crafted policy balance exhibited in the Commission's order.