- Wednesday, February 20, 2019 at 12:10PM - 1:30PM
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Since the FCC rescinded federal network neutrality regulation, there has been a flood of state laws seeking to reimpose network neutrality at the state level. Those state laws have themselves been challenged, both as preempted by the same FCC ruling that rescinded federal neutrality rules and as violating “dormant Commerce Clause” limitations on state power. The primary dormant Commerce Clause argument is that the various state forms of network neutrality will burden interstate commerce with a “patchwork” of state regulation, to which the States can rightly respond that they are regulating only “last mile” connections, which are wholly intra-state. But there is a stronger constitutional argument against state network neutrality laws: That the economics of network neutrality make it fundamentally unsuitable to state regulation. The primary objects of network neutrality regulation are content markets, not telecommunications markets. Those content markets are national (if not international), rendering “local” network neutrality regulation an attempt to regulate inherently interstate content markets. Understanding that the primary market regulated by state network neutrality laws is a national market demonstrates that state laws present more than a risk of a “patchwork” of state regulations – they are a direct attempt to regulate activity outside the relevant states.
Thomas Nachbar is a Professor of Law and Senior Fellow at the Center for National Security Law at the University of Virginia School of Law. Prof. Nachbar has written extensively on the history of trade regulation, from mercantilist England through 20th-century America, with an emphasis on the constitutional dimensions of trade regulation. His work on network regulation ranges from study of common law, common-carriage obligations to regulation of the Internet. He has both practiced and published in the field of telecommunications law (he authored, with Glen Robinson, the casebook Communications Regulation), and is an expert on the Supreme Court’s constitutional equal protection and due process jurisprudence. He also teaches and writes on cybersecurity, with an emphasis on security of communication networks and the connection between network security and private industry. He is the convener of the Stanton Series on Liberty and Security (held annually at the University of Virginia) and is a judge advocate in the U.S. Army Reserve, where he has, among other assignments, edited an Army handbook on the development of legal systems, trained Palestinian security forces in the West Bank, and deployed to Iraq. From 2011-14 he was a civilian Senior Advisor in the Office of Rule of Law and Detainee Policy at the U.S. Department of Defense.