The FCC should “include a clear, affirmative ruling that expressly confirms the primacy of federal law with respect to [broadband] as an interstate information service,” Comcast said in a recent regulatory filing.
In a white paper released late last month, Verizon also lobbied for preemption, citing moves by about 30 states — "an alarming number" — to adapt to a congressional measure repealing FCC privacy protections for consumers.
The FCC didn't immediately respond to a request for comment.
At stake are the FCC's rules that prohibit Internet providers from blocking, slowing or giving preferential treatment to some websites at the expense of others. Approved in 2015, the rules were widely supported by advocacy groups who said they were a vital consumer protection. But they were also vehemently opposed by Internet providers who said the regulations were illegal and overly burdensome.
The fight revolves around the FCC's decision to classify Internet providers under the law as “common carriers,” the same designation the agency applies to telephone service providers. Under Republican leadership, the FCC now wishes to backtrack on that policy change, seeking to reclassify broadband companies under “information services,” a more lightly regulated designation.
But the broadband industry fears that even if the FCC succeeds in deregulating, states could take steps “countermanding” the federal agency's decision, according to the Verizon white paper.
“Allowing every State and locality to chart its own course for regulating broadband is a recipe for disaster,” the company said. "It would impose localized and likely inconsistent burdens on an inherently interstate service."
John Bergmayer, a senior counsel at the consumer group Public Knowledge, said that FCC rules generally take precedence over state and local rules.
“If the FCC says X and a state says Not-X then the FCC wins,” he said. But, he added, it is less clear what happens if a piece of state regulation addresses an issue not explicitly contemplated by the federal rules — and how far states are allowed to take their consumer protection mandates.
“As even Comcast admits, the FCC has no power to preempt state consumer protection laws,” Bergmayer said. “There are questions about what counts as 'consumer protection' that would have to be answered.”
Then there's the question of whether state and local preemption could wind up being a double-edged sword. A conclusion by today's FCC that its looser net neutrality rules are the law of the land, and that state variants will have no effect, may help Internet providers this time. But a future FCC that adopts stricter rules against the industry's wishes might be treated the same way.
Some telecom industry officials say that's a risk they're willing to take.
“Almost as important to me as what the rules are, are the fact that there need to be one set of them,” said one industry official, speaking on the condition of anonymity to discuss company strategy. " 'Be careful what you wish for,' but it's hard to imagine — even if you had an unhelpful decision from the FCC — it doesn't help me at all if California allows a more lenient standard” because companies would still be required to adhere to more stringent standards in other states.