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Comment by thehardsphere | Hacker News Reader

Serious question: Is having state-level net neutrality laws actually good policy?

Another serious question: is having state-level net neutrality laws even Constitutional?

The FCC's repeal of net neutrality contains a preëmption clause preventing state and local governments from imposing their own inconsistent restrictions (1), and it will be using its authority under the Commerce Clause of the Constitution to defend it (2). I understand their claim to be that it's impracticable to distinguish between interstate and intrastate network traffic, and that states would only have authority to constrain the latter. (3)

I'm not sure how my dear state of California is working around that, or if this action is just kicking off a ball that will be headed directly to the courts.

(1) FCC 17-166, https://transition.fcc.gov/Daily_Releases/Daily_Business/201... , para. 195.

(2) Ibid, para. 197–204. (FCC's authority under the Commerce Clause is established in the Communications Act of 1934, updated under the Telecommunications Act of 1996. These and existing case law are cited as legal justification.)

(3) Ibid, para. 200.

> The FCC's repeal of net neutrality contains a preëmption clause preventing state and local governments from imposing their own inconsistent restrictions (1), and it will be using its authority under the Commerce Clause of the Constitution to defend it (2). I understand their claim to be that it's impracticable to distinguish between interstate and intrastate network traffic, and that states would only have authority to constrain the latter. (3)

Traffic isn't being regulated, packages of services offered to customers in pure intrastate commerce, however, are.

> I'm not sure how my dear state of California is working around that, or if this action is just kicking off a ball that will be headed directly to the courts.

The bill with actual content (SB 460) includes both a direct neutrality mandate (which will be challenged on the ground you suggest), and a prohibition on state agencies contracting for internet services from providers that don't make a binding (that is, “criminal to violate” commitment to adhere to neutrality in their offerings in the state.)

Of course, both the FCCs own order (already being challenged) and the laws in response (like every previous policy action on neutrality) are inevitably headed to the courts. That's not in question.

Traffic isn't being regulated, packages of services offered to customers in pure intrastate commerce, however, are.

Being the home to so many internet based companies, California is in a position to make such a law which will have a significant effect -- perhaps. How is intra-state defined? On paper, Apple Inc. is incorporated where? Is it really Cupertino? If so, then couldn't they redirect certain traffic to a subsidiary one state over? How would California fight against companies trying to get around their law using routing tables?

The law effects the service an ISP sells to a consumer. Routing tables and where Apple is located (physically or legally) have nothing to do with it.

The simple answer is the laws don't enforce net neutrality. They say that the state government (schools, agencies, etc) Can't purchase any networking/etc from companies that don't follow net neutrality.

Kind of like forcing "prevailing wage" on construction contracts, instead of raising minimum wage state-wide.

Hopefully someone here can shed some light on my limited understanding regulations, but aren't internet services, because they are inter-state in nature out of the jurisdiction of the state?

No, if they operate in the state then they are part of the state's jurisdiction. All terrestrial internet services would have to have some presence in the state otherwise they wouldn't be able to provide internet access. Multi-state entities have to follow the laws and regulations of each place they have a presence, not just federal laws.

Basically, if ~~the FCC~~ Verizon and Comcast loose in court, ISPs will be able to do as they please only in states with no net neutrality protections. They will have to follow both the FCC and state law otherwise.

In effect, this is highly likely to backfire. ISPs will have to spend more money than they claimed they did (before the repeal) in order to meet regulations.

I'm personally a bigger fan of mandated line sharing. This would actually foster competition. Furthermore, if the FCC were to protest it, it would be irrefutable evidence that they are captured and that NN wasn't repealed to foster competition at all.

Basically, if ~~the FCC~~ Verizon and Comcast loose in court

I don't think they will loose in court. Bows and Arrows wouldn't make it through the security check. (Commanders before the invention of firearms wouldn't be saying "fire" you see.)

> Basically, if ~~the FCC~~ Verizon and Comcast loose in court

You mean, if the win the challenge to the FCC repeal action and lose the effort to have that repeal preempt state neutrality laws. Win/win and Lose/moot are also possibilities.

The net neutrality laws will be covering what a CA company can sell to CA consumers without need of regulating interstate communications. We're going to set these up in every state and let any states that actually want the bought-and-paid-for FCC decision to have it.

> We're going to set these up in every state and let any states that actually want the bought-and-paid-for FCC decision to have it.

Not sure who “we” is, but neutrality advocates are, in fact, challenging the FCC decision in court, trying to do that in Congress, and presumably will continue that effort in, at least, the 2018 midterm Congressional elections.

They are also working at the state level, but not exclusively.

How is that different than successfully trying to enforce Net Neutrality at the national level over network connections between US and other countries? If one is possible so is the other.

I have been struggling with this question also. The responsibility of the state government is similar to the federal government in that they are meant to represent the interests of their citizens. Within a state it is undoubtably good policy to provide a mechanism for enforcing a positive social good like utility regulation if that is what the residents of that state want. The flip side is that the internet is necessarily interstate commerce and hence the federal government can always invoke the interstate commerce clause (the same argument they use for drug policy) to do whatever they want. However, as we see states invoking their rights to designate drug policy within their borders this seems to be a natural policy extension.

I think what you are bringing up though is the quagmire that could result from trying to build a network that has to abide by 50 different regulatory systems. I would like to see an independent third party draft regulation on net neutrality that each participating state could then adopt through their own procedures. I know that probably won't happen, but it would be nice to see a form of "collective bargaining" among the states.

Personally, it is good policy for states to support net neutrality if that is what their constituents want. But the implementation might be a shit show.

It allows for more experimentation than say a national level policy which is far more inflexible.

Well, sure. I get that sort of argument for something like tax policy.

But is this actually an experiment that should be run at the state level? I mean, having 50 different net neutrality laws that all actually mean and require different things doesn't strike me as being efficient.

Better than nothing. With an uncooperative federal government, we'll take what we can get.

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