States fire back at FCC to preserve net neutrality
Friday, March 30, 2018
Last December, the Federal Communications Commission (FCC) voted along party lines to end the policy to regulate the internet like a utility. The vote was controversial, but highly expected throughout 2017.
But net neutrality is technically still not off the books yet. As is almost always the case with federal regulations — especially ones that touch as much of the economy as net neutrality does — there was a period between the voting to change the regulations and when the rules are published in the Federal Register and then go into effect.
However, the only constants in the circuitous net neutrality saga in the past two decades since the start of broadband internet capabilities have been policy change and coming legal action. As legislative and legal proceedings have shown thus far in 2018, the latest change in the way the internet is governed looks like it might spawn more court proceedings and committee hearings than ever before.
In January, a variety of lawsuits were filed against the Restoring Internet Freedom Order, ranging from 21 attorneys general across the country, tech companies like Firefox-maker Mozilla, and think tanks and public advocacy organizations. That course of action is reminiscent of legal action filed by pro-business telecom organizations after the 2015 order that guaranteed net neutrality at the time.
Various jurisdictions across the United States aren't stopping there, though.
Despite the fact that the recent FCC order's final rule says in Section 176 that it will "preempt any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that we address in this order," some states and municipalities are saying "damn the torpedoes" and signing off on laws and orders that preserve net neutrality to different degrees.
Montana was the pioneer of this trend in January, when Gov. Steve Bullock signed an executive order that required internet service providers with state contracts to adhere to net neutrality. The Democratic governor wasn't shy about campaigning for the executive order in other states, and New York, Hawaii, New Jersey and Vermont have all followed suit with similar orders in 2018. Additionally, New York City Mayor Bill de Blasio is part of a 12-mayor group that has pledges not to award municipal contracts to ISPs failing to uphold net neutrality.
But the strongest action to date by far came from Washington state, which early in March became the first state to put net neutrality laws for all internet users in the state on its books after getting Gov. Jay Inslee's signature. The measure passed both chambers of the state legislature overwhelmingly, with significant bipartisan support.
The executive orders like Montana's and New York's have a decent legal footing since they apply to state contracts and internet that state government employees use, and not all private consumers in a state. As a fact sheet from Bullock's office published after the order states, "Companies that don't like it don't have to do business with the State — nothing stops ISPs from selling dumpy internet plans in Montana if they insist."
However, Washington state's law flies directly in the face of that FCC preemption clause — which is actually by design and will almost surely spawn lawsuits from lobbying groups that represent ISPs and telecom companies that originally opposed the Washington law as it made its way through both houses of the state's legislature.
If those coming lawsuits end up finding that the FCC doesn't have the legal power to preempt state and local net neutrality laws, as Washington state believes, then the whole framework for national internet policy will change — yet again.
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