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Publication Date

2020

Abstract

In 2018, on the heels of intense debate and
widespread media campaigns, the FCC repealed its
2015 regulations protecting net neutrality. The repeal
continued to stoke controversy after it was announced,
facing congressional and legal challenges almost
immediately. The most interesting response, however,
has been the passage of state net neutrality laws in
California, Oregon, Vermont, and Washington. The first
of their kind, these four laws largely purport to reinstate
the 2015 net neutrality rules within state lines.
Rather than take sides in the net neutrality debate,
this Note focuses on these novel state laws and,
principally, whether they will survive. Interesting
creatures they may be, the states encounter a difficult
federal preemption problem right off the bat.
Straightforward application of the law seems to
squarely preempt them. This law, however, depends on
precedent and a statutory framework established well
before the existence of the modern Internet. Accordingly,
this Note proposes a reevaluation of the preemption
question and the legal background.
Setting preemption aside, this Note explores another
obstacle to state net neutrality regulation: the dormant
Commerce Clause. Because the Internet has
traditionally been regulated by the federal government,
the states must be careful not to discriminate against or
otherwise offend the interstate market for Internet
provision. Nevertheless, applying the Pike balancing

test, this Note concludes that the state laws—insofar as
they only regulate Internet provision and ISPs acting
within the state—do not unduly burden the flow of
interstate commerce, and are justified by the state’s
interest in consumer safety and welfare. Moreover,
traditional federalism policies support state Internet
regulation. At the very least, the state net neutrality laws
warrant a closer look, and this Note argues that they
present a viable alternative to federal regulation.

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