Who gets to block your Kalshi bets? Washington just escalated the fight

The Commodity Futures Trading Commission's November 5 demand gives US derivatives exchanges 30 days to remove domestic geographic restrictions that violate its impartial-access rules or explain why compliance is not feasible. That puts fresh federal pressure on the geographic controls the Sixth Circuit said could coexist with prediction market Kalshi's federal obligations.

The conflict centers on geofencing: using a trader's location to determine which markets they can access. The CFTC now says otherwise eligible US participants generally should not be excluded by geography. In September, the Sixth Circuit reasoned that exchanges could use geographic limits while meeting federal obligations.

The instruction applies to designated contract markets, or DCMs. The same release says they should ensure intermediaries accessing their markets comply within 30 days, or explain why compliance is not feasible.

The CFTC's interpretation expects exchanges to examine access criteria, exchange rules and intermediary arrangements.

The Commission says it will consider each case's facts and circumstances before potential action. The 30-day demand comes from the dated release; the accompanying PDF remains subject to pre-publication technical corrections and retains an unfilled effective-publication-date placeholder.

The CFTC argues that excluding eligible traders can fragment liquidity and weaken price discovery. Its guidance highlights election markets where local participants may contribute useful information, presenting these as potential costs of geographic exclusion.

In its September 25 preliminary-injunction opinion, the Sixth Circuit held that Kalshi had not shown its sports-event contracts met the relevant statutory definition of a swap, the classification behind its claim to exclusive CFTC oversight. It read that definition as requiring an inherent financial, economic or commercial consequence, rather than the downstream effects of a sports result.

The panel then reached an alternative holding: even assuming the contracts were swaps, the Commodity Exchange Act did not expressly or impliedly preempt Ohio and Tennessee gambling laws.

Geofencing appeared within that second analysis. Rejecting Kalshi's argument that compliance with both regimes was impossible, the judges read impartial access as access to whatever markets an exchange offers. They did not read it as requiring every event contract to be available in every state, and pointed to geographic controls used by other companies.

The new CFTC position directly challenges that regulatory premise. But changing the interpretation of an access rule does not, by itself, undo the court's swap-classification decision or the rest of its preemption analysis.