Net Neutrality from the Ground Up

Abstract

In the long-running net neutrality debate, a key assumption has been that broadband and broadband Internet access service are “jurisdictionally interstate.” But are they really? And what does that mean? In practice, the interstate classification has meant that the important decisions about broadband law and policy -- whether online content delivery will be akin to the common carrier model of the legacy phone network or the entertainment model of the cable television industry, for instance – are made almost exclusively at the federal level. \n \nThe “who decides” question took on new immediacy in 2017, when the Federal Communications Commission gutted federal net neutrality rules, and then attempted to preempt states from adopting their own. Several states nevertheless enacted open network laws, and two of those laws (in California and Vermont) were promptly challenged as an intrusion on federal prerogatives. \n \nThis paper examines the interstate assumption “from the ground up.” It starts with wires in the ground and radio waves from the local cell tower, i.e., with “last-mile” infrastructure, without which there would be no broadband Internet access. It arrives at the conclusion that “jurisdictionally interstate” is more of a fictional construct than a factual description, one that expresses unexamined policy choices more than essential network attributes. It ends by reflecting on alternate ways that federal, state, and local interests might more harmoniously be integrated in light of the broadband network’s physical presence and the state laws that enable that presence.