Justice Clarence Thomas’s intriguing discussion of the Supremacy Clause and federal agency preemption in Lipschultz v. Charter Advanced Services, LLC (2019) has fueled questions about whether the FCC's Restoring Internet Freedom Order (RIF Order) may validly preempt state net neutrality laws that are being challenged in the courts.
The FCC's RIF Order replaced federal net neutrality regulation and reestablished a federal policy of nonregulation of broadband services under Title I of the Communications Act. In Mozilla v. FCC (2019), the D.C. Circuit later upheld the RIF Order's reclassification of broadband Internet access services as Title I "information services," but it vacated the Order‘s express preemption section. The D.C. Circuit held that state net neutrality laws could be subject to conflict preemption claims in future cases. California and Vermont net neutrality laws are subject to pending legal challenges.
Interestingly, Justice Thomas's opinion in Charter Advanced maintained that, without a "final agency action," a federal policy of nonregulation of "information services" is not a valid basis for preempting state laws that conflict with that policy. Does Justice Thomas's opinion have implications for the FCC and for the RIF Order? To find out why the RIF Order's preemptive basis is secure and avoids the concerns raised by Justice Thomas in Charter Advanced, read my blog post at Notice and Comment titled "FCC's 'Final Agency Action' to Restore Internet Freedom Preemptions State Net Neutrality Laws."
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Seth Cooper is Director of Policy Studies and a Senior Fellow of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland.