Perspectives from FSF Scholars May 10, 2024 Vol. 19, No. 18

As a result, the court should reconsider its decision in light of the FCC’s recent action, and affirm the lower court’s decision to enjoin the act. [...] The court explained that Title II includes federal rate 2 regulation authority, so a decision to classify broadband under Title II but forbear from rate regulation would preempt states from imposing at the state-level obligations that the Commission eschewed at the federal level.16 But the Second Circuit reasoned that Title I does not grant the Commission the power to regulate rates, and “[a]bsent. [...] As I have discussed at greater length elsewhere,18 the Supremacy Clause preempts a state law that “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of the federal government.19 In Geier v. [...] The day before the decision was published, the Commission adopted a new decision repealing the RIF Order and reinstating the 2015 Open Internet Order’s Title II regime.25 Although this decision is problematic in many ways, the Commission expressly stated that “we do not find ex ante or ex post rate regulation necessary” and thus “we find it in the public interest to forbear from applying sections. [...] If that proves unavailing, they should seek relief from the Commission and hold it to its promise that it “will not hesitate to exercise…authority” to preempt state laws that “interfere or are incompatible with the federal regulatory framework” established under the order.28 In a paragraph added after the final vote, the order declined to expressly address any particular state program.29 And while.