Conflict Preemption of State Net Neutrality Efforts After Mozilla

Abstract

Earlier this week, the D.C. Circuit issued its long-awaited decision in Mozilla v. Federal Communications Commission. The court affirmed the Commission’s Restoring Internet Freedom (RIF) Order, identifying some flaws in the agency’s reasoning but finding the agency could likely correct those errors on remand without vacatur. While chastened by the ruling, some net neutrality advocates have identified a potential silver lining. The court vacated the portion of the RIF Order that expressly preempted state and local broadband regulations. Advocates have latched onto this holding as permission for legislatures to reimpose at the state level the restrictions that the Commission repealed at the federal level.

But these advocates are likely to be disappointed, as this reads too much into the court’s decision. Any state effort to regulate broadband providers is still subject to conflict preemption on a case-by-case basis. The court recognized that the Order created a “light-touch” regulatory regime that relies on transparency and disclosure requirements against a backdrop of consumer protection and antitrust law to protect consumers, an approach that the court found reasonable. State laws that disrupt this carefully balanced federal policy are likely to be preempted—not by the RIF Order itself, but by the Supremacy Clause. In other words, it is unlikely that the courts will allow the Internet—which, by definition, cannot possibly be segregated into interstate and intrastate components—to be governed by state legislators or other local officials in Sacramento, California, or Montpelier, Vermont.