Democratic state lawmakers around the country are responding to the Federal Communications Commission’s rollback of net neutrality rules with legislation that would mandate similar requirements.
The GOP-controlled FCC Dec. 14 eliminated rules barring ISPs such as AT&T Inc. and Comcast Corp. from blocking data traffic on their networks or charging for faster speeds. The commission included language in its order pre-empting states’ regulation of broadband.
Some state lawmakers are trying to skirt that preemption by focusing on state authority over their own contracts, or writing new rules under their own consumer protection authority. Such efforts, if successful, could spark new legal clashes between states and the FCC over who has the authority to regulate broadband.
“There haven’t been a lot of court cases that have tested this sort of route-around,” Will Rinehart, director of technology and innovation policy at the nonprofit American Action Forum, told Bloomberg Law regarding the state contract approach. “This isn’t an easy win for ISPs, considering just how extensive the contracts really can be.”
It’s too early to tell whether any state will enact such legislation. An FCC spokeswoman declined to comment. NCTA—The Internet & Television Association, an ISP trade group, declined to comment on the state proposals.
A New York bill introduced Dec. 20 by Assemblywoman Pat Fahy (D) would embed net neutrality requirements—no blocking, no slowing, and no paid internet fast lanes—into state government contracts. Fahy told Bloomberg Law Dec. 20 she hopes the “side-door approach” will circumvent the FCC’s pre-emption language.
“We’re trying to get around this federal pre-emption and make sure that we can pass constitutional muster as well,” Fahy said. New York would use the “power of the purse” to preclude ISPs that engage in such practices from doing business with the state, she said.
The bill’s fate in the New York legislature is unclear, particularly in the Republican-controlled state Senate.
California State Sen. Scott Wiener (D) is working on a bill that may include language to enshrine net neutrality requirements into that state’s contracts. California is “a massive entity with massive contracts,” which could make that approach a compelling deterrent to ISPs, Wiener told Bloomberg Law.
The FCC draws its pre-emption power partly from the federal government’s authority to regulate interstate commerce. “We have to be very mindful of interstate commerce,” Wiener said. “But we do have levers.”
A state government opting to do business only with an ISP that agrees to not block or slow traffic is not a regulatory act, Tom Struble, technology policy manager and policy counsel with the R Street Institute, a libertarian think tank, told Bloomberg Law. “It’s just the government acting as a consumer,” he said. “You could do that today.”
But if a state passes a law mandating such language in state contracts, ISPs can sue state governments to claim that such terms and conditions violate federal law, Struble said.
Wiener is also weighing whether to include language in his bill that would mandate net neutrality in right-of-way infrastructure agreements or in cable franchise agreements, which grant cable companies the right to operate in certain areas.
But those methods might yield messier legal outcomes, telecom analysts said. Cities like Portland, Ore. have tried to tighten their grip on what telecom and cable companies can do through such methods and failed in court.
“Cities have tried to regulate broadband by imposing conditions on those rights of way and franchising agreements, and those have been challenged and struck down in court,” Struble said.
Wiener plans to introduce a bill between January and mid-February and hopes it will get bipartisan support. But telecom companies have a lot of influence in California’s legislature, he said.
“We have various points of leverage over the broadband industry, and we’ll come up with a good mix of approaches,” Wiener said.
Hawaii State Rep. Kaniela Saito Ing (D) wants his state to take ownership of its broadband, not simply regulate it. His proposal would explore the possibility of public or community-owned broadband, potentially modeling the system on rural electrical co-ops. “We’re going to have to eventually treat internet like a utility, because it is becoming an essential human need,” Ing told Bloomberg Law.
In its rollback, the FCC also reclassified internet as an information service, changing it from its Obama-era designation as a utility-like telecom service.
In Massachusetts, state Sen. Barbara L’Italien (D) filed a net neutrality bill earlier this week attempting to establish network management rules in that state. The bill aims to “protect consumers from blocking, throttling, or paid prioritization in the provision of internet service.”
The bill’s language was modeled on a similar Democratic bill filed in Washington state, she said.
“I have heard from many people, and the sheer number of people responding on social media show me there are grave concerns about what the FCC did last week,” she told Bloomberg Law Dec. 20. “We are doing what we can to preserve net neutrality for Massachusetts.”
L’Italien acknowledged it remains to be seen if her proposal holds up in court in the face of FCC pre-emption. But about 30 state legislators from both parties have signed on as co-sponsors in just two days, she said. It’s “a pretty robust sign of its support” in the legislature.
The bill will head to the Massachusetts legislature’s Joint Committee on Consumer Protection and Professional Licensure. L’Italien, who is chairperson of the committee, expects to hold a hearing on the bill early in 2018.
An emergency provision placed on the bill “will hopefully get it moved along with a higher priority,” she said.
State lawmakers’ urgency reflects a groundswell of popular support for net neutrality principles. Their efforts and the FCC’s insistence on preempting state broadband regulation may be on a legal collision course.
“It’s one battle in a larger fight over regulatory supremacy,” Rinehart said.
To contact the editor responsible for this story: Roger Yu at firstname.lastname@example.org.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)