In an article published last week, The Preemption Predicament Over Broadband Internet Access Services, Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies, dives into the legal history of the Federal Communications Commission (“FCC”) policy of preemption via nonregulation of Title I information services to better understand the competing arguments underlying the Mozilla v. FCC decision, as well as the questions raised by Justices Thomas and Gorsuch’s separate statement in Charter v. Lange (or Lipschultz v. Charter at the Supreme Court). 

As discussed in Mr. Spiwak’s article, “[f]or nearly two decades, the notion that IP-enabled services should be treated as information services under Title I of the Communications Act subject to exclusive federal jurisdiction was a cornerstone of federal broadband policy.”  In 2015, the FCC under the leadership of Chairman Tom Wheeler reclassified broadband internet access back to a common carrier service under Title II of the Communications Act.  The FCC’s 2018 Restoring Internet Freedom Order reversed the Obama-era 2015 rules.  While the D.C. Circuit upheld the FCC’s decision to return classification of broadband internet access back to a Title I information service in Mozilla, the court rejected the FCC’s attempt to preempt state efforts to regulate information services in all cases. 

As Mr. Spiwak notes, this decision has “thrown a wrench” into the FCC’s long-standing policy, the effects of which remain to be seen and “where this litigation ultimately ends up is anyone’s guess.”  Throughout his article, Mr. Spiwak explores these issues, as well as other “glaring oddities” in the majority’s reasoning on preemption.  Mr. Spiwak’s article is available here.