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Friday, May 05, 2017

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Chanson de Roland

While I am in favor of what Seattle has done as I am in favor of the privacy rules that the FCC promulgated under former FCC Chairman Wheeler, Seattles new privacy protections may not survive challenge in the federal courts. Congress and not the states or in political sundivision of any state has exclusive jurisdiction of interstate commerce. And without trying to condense an entire semester of the Commerce Clause jurisprudence into this short space, regulating broadband ISPs, whether they be common carriers under Title II of the Telecommunications Act or information services under Section 706, are certainly interstate commerce. And it certainly appears that Congress has vested exclusive authority to regulate ISPs, at least, in the FCC, so that any other state government that attempts to regulate ISPs will have a federal court of competent jurisdiction strict those regulations down as preempted by the FCC and Congress' exclusive jurisdiction to regulate any ISP, whose network is part of the interstate network of telecommunications.

What little is left to local governments is deciding and regulating where an ISP can run its wires and accessing some reasonable charge or tax for the necessary easements and rights of way.

It will be interesting to see whether Seattle's laws regulating the privacy practices of ISPs survive judicial scrutiny.

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