The broadband industry is stepping up its attack on states that dare to impose privacy or net neutrality rules on Internet service providers.

Mobile industry lobby group CTIA urged the Federal Communications Commission to preempt state laws on privacy and net neutrality in a recent meeting and filing. Comcast and Verizon had already asked the FCC to preempt such laws; CTIA represents AT&T, Verizon, T-Mobile USA, Sprint, and other mobile companies.

Carriers are urging the FCC to preempt states in the same regulatory proceeding that FCC Chairman Ajit Pai started in order to overturn the commission's net neutrality rules. Pai's proposal to eliminate net neutrality rules could be passed as soon as next month—if carriers get their way, that same order will prevent states from imposing their own laws.

FCC and interstate services

"Earlier this year, legislators in various states attempted to countermand Congressional action on broadband privacy regulations," CTIA complained, referring to Congress' vote to eliminate consumer privacy protections. With the FCC about to repeal its net neutrality regulations, CTIA is worried states will try to fill the regulatory gap.

"State regulation that addresses broadband providers—with respect to network neutrality, privacy, or other matters—would contravene the federal policies" of "non-regulation," CTIA wrote. States imposing their own consumer protection laws would somehow "undercut" broadband deployment and harm consumers, CTIA claimed. But the group did not explain exactly how such laws would harm broadband deployment or consumers.

ISPs are currently regulated as common carriers, but Pai intends to reclassify them as information services, which would wipe out the existing net neutrality rules and other consumer protections.

CTIA argued that broadband Internet access shouldn't be regulated by states because it is an interstate service "within the sole jurisdiction of the FCC, and Congress has advanced a national policy of non-regulation for information services." The FCC should therefore "hold that state or local broadband-specific regulation is incompatible with, and thus preempted by, the federal policy established by Congress favoring non-regulation of such offerings," CTIA wrote.

Preemption would be tested in court

Any attempt to preempt state privacy or net neutrality rules would likely be tested in court. The FCC does have some preemption authority, but a previous FCC decision to preempt state laws that restrict the expansion of municipal broadband was struck down by a federal appeals court.

The FCC cannot preempt every type of state regulation related to broadband, Senior Counsel John Bergmayer of consumer advocacy group Public Knowledge told Ars recently. "It is fairly clear, for instance, that the FCC cannot preempt state efforts around consumer protection, even when the product in question is broadband," he said.

Moreover, the FCC's proposed rulemaking on net neutrality did not ask the public for input on preempting state net neutrality laws. Preempting state laws might require another notice-and-comment period, which would rule out any final decisions being made this year.