That inference prohibits discrimination against interstate commerce, so e.g. allowing in-state unpasteurized butter but forbidding out-of-state would be in breach.
Applying stricter standards than federal, or average, is not against the dormant commerce clause, as long as it's applied equally to everyone. So California would not be in breach as long as they apply net neutrality to:
* all ISPs period
* Californian ISPs only
There's also an argument against "inappropriately burdening" interstate commerce, but that argument doesn't really make sense against NN: traffic shaping and traffic-specific charges require the addition of systems dedicated to those ends. NN requires not doing anything.
The “inappropriately burdening” cases is what I was thinking of. I suppose I would disagree that the theory is inapplicable. The law burdens isps by requiring them to alter their ordinary business practices in a way that substantially affects interstate commerce.
That said, I’m sure the issue was raised and rejected.
It doesn't matter that a state law may affect a business' ordinary business practices in a way that affects interstate commerce. What matters is that the state law does so in a way that discriminates against interstate commerce (meaning that different rules are applied to out-of-state businesses than to in-state businesses).
Thus, if the law applies equally without regard to whether the transaction is intrastate or interstate, the dormant commerce clause is not implicated.
In this case, the CA net neutrality rules apply to all ISPs providing services in CA. It does not require them to apply net neutrality rules to non-CA customers. Therefore, the dormant commerce clause does not apply.
Applying stricter standards than federal, or average, is not against the dormant commerce clause, as long as it's applied equally to everyone. So California would not be in breach as long as they apply net neutrality to:
* all ISPs period
* Californian ISPs only
There's also an argument against "inappropriately burdening" interstate commerce, but that argument doesn't really make sense against NN: traffic shaping and traffic-specific charges require the addition of systems dedicated to those ends. NN requires not doing anything.