Court Boosts FCC Case in State Net Neutrality Fight

The FCC just got a big boost in its looming fight with states over network neutrality legislation.

The U.S. Court of Appeals for the Eighth Circuit has affirmed that state efforts to regulate information services are preempted by federal law.

That decision came in Charter Advanced Services LLC v. Lange (the state of Minnesota's effort to regulate interconnected VoIP). A district court had concluded that because VoIP was an information service, Minnesota's attempt to regulate it was preempted, and the federal appeals court agreed.

Related: FCC Backs Charter in VoIP Suit

Actually, the FCC has yet to define how it classifies interconnected VoIP, but the court said the FCC has declined to do so for over a decade so the court did not feel it had to wait around, but could shed its own light on the subject, which it did did (check out footnote three, page six here).

The FCC's Restoring Internet Freedom order reclassified internet access from a telecommunications service, which is generally subject to dual federal and state regulation, to an information service, which is not; eliminated net neutrality rules; and pointed out that state efforts to reinstate them were thus preempted, though several states have done so anyway.

So, the court affirmation that state regulation of an information service is preempted buttresses the FCC's case as it prepares to take on California and other states that have passed, or are planning to pass, net neutrality rule restoration bills in the wake of the FCC's reg rollback last fall.

“A patchwork quilt of 50 state laws harms investment and innovation in advanced communications services," FCC chair Ajit Pai said of the decision. "That’s why federal law for decades has recognized that states may not regulate information services. The Eighth Circuit’s decision is important for reaffirming that well-established principle: ‘[A]ny state regulation of an information service conflicts with the federal policy of nonregulation’ and is therefore preempted. That is wholly consistent with the approach the FCC has taken under Democratic and Republican Administrations over the last two decades, including in last year’s Restoring Internet Freedom Order.”

An FCC spokesperson was not available for comment on whether the FCC would now launch a proceeding to classify interconnected VoIP as an information service.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.