Jeff sez, "Instead of waiting for Congress to pass a bill to enforce Net Neutrality, net activists should take a cue from Pittsburgh, whose city council recently passed groundbreaking legislation banning fracking (an environmentally polluting form of natural gas drilling). While fracking and Net Neutrality have little in common, Pittsburgh's ordinance uses powerful legal concepts that may be useful for preserving Internet freedoms.
Like Pittsburgh has done with fracking, any community can enact an ordinance that enforces Net Neutrality at the local level, as the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011 aspires to do at the federal level. And, they can do so now ... without waiting for Congress.
Firstly, the Pittsburgh ordinance enforces the right of communities to democratic self-governance. Second, the ordinance strips corporations of their Constitutional rights if they seek to engage in fracking. The organization that assisted Pittsburgh in drafting the ordinance explains how these ordinances are designed to work:"
The ordinance seeks to undo over a hundred years' worth of law in the United States which gives corporations greater rights than the communities in which they do business. Those rights come in two primary forms -- first are corporate constitutional rights and powers (including court-bestowed constitutional rights of persons, or 'personhood' rights), and second, are corporate rights that have been codified by statewide laws, which liberate the corporation from local control in individual issue areas.
When a community makes a decision which runs afoul of either of those corporate rights frameworks, corporate decisionmakers use the courts to throw out the community's decision. If a municipality bans a State-permitted activity, it gets sued for 'taking' the corporation's property as a constitutional violation. If it attempts to legislate in an area in which the State has created a regulatory program which permits the activity, the community then gets sued by the corporation for violating preemptive state law.
I admit I'm not entirely convinced by this approach. I've been talking it over in email with Thomas Linzey, counsel for the Community Environmental Legal Defense Fund in Spokane, Washington. He suggests that the legal principle here expand the rights of natural people, and that this is fundamentally different from a "states' rights" approach that gives rise to, say, segregation. In the case of Net Neutrality, this seems mostly symbolic (since the FCC's jurisdiction is pretty clear), a way of reframing the debate and shifting opinion to make change at levels beyond the local.