Pai declares California resistance to net neutrality demise as illegal

Speaking to an audience at the Maine Heritage Policy Center, FCC Chairman Ajit Pai has slammed California for even thinking about going against his holier-than-thou word on net neutrality.

It’s a divisive topic which doesn’t seem to want to go away, but Pai and his cronies can’t have imagined there would be this much of a backlash against the demise of federal net neutrality rules. Resistance was bound to be expected, though it now appears the disagreement is about to escalate into another state versus federal battle ground.

“The broader problem is that California’s micromanagement poses a risk to the rest of the country,” said Pai. “After all, broadband is an interstate service; Internet traffic doesn’t recognize state lines. It follows that only the federal government can set regulatory policy in this area. For if individual states like California regulate the Internet, this will directly impact citizens in other states.”

While this statement reeks of PR, Pai is not incorrect. The internet industry is a beast which rarely recognises international borders, take the Silicon Valley approach to taxes as an example, so how destructive will it be if all states take their own approach to regulating the digital highway? This is not to say Pai is correct in creating a digital wild west where the FCC has as much influence over the telcos as a dog over its tail, but in protesting the FCC’s position California is creating an immensely complicated landscape.

This will be of little concern to the righteous individuals leading the net neutrality charge, though the state versus federal undertone seems as if it is about to bubble to the surface.

“Among other reasons, this is why efforts like California’s are illegal,” said Pai. “In fact, just last week, the US Court of Appeals for the Eighth Circuit reaffirmed the well-established law that state regulation of information services is pre-empted by federal law. Last December, the FCC made clear that broadband is just such an information service.”

In the latest version of the Communications Act, the legislation which is the bedrock for all telecommunications regulation in the US, there is a clause which dictates any state-level rules which contradicts the position of the FCC are invalid. This is not to say states cannot put forward their own rules, but these rules can only impact activity in the state. As the internet is borderless, and it is almost unthinkable to contain traffic in an individual state, California cannot pass any new rules without undermining this clause.

And while California has received the attention of Pai in this speech, it is not the only state providing resistance. Washington is another which has passed its own regulation, though California’s hasn’t been signed into law just yet. California Governor Jerry Brown is reportedly yet to sign on the dotted line, perhaps delaying the state versus federal clash.

One question which is yet to be answered is what will happen if California is allowed to pass its own net neutrality laws. As it directly undermines the Communications Act, does that not invalidate the rest of the legislation? Will it open the door for a colourful quilt of dozens of different interpretations of different internet regulations? Precedent is a powerful trend in the legal community; if this contradiction is allowed, why shouldn’t other states have a go at creating localised laws in other areas?

This might be a net neutrality argument right now, though it has the potential to undermine the FCC authority everywhere else. Pai needs to tread carefully here.