Home – States Seek To Chart Their Own Course on Net Neutrality

States Seek To Chart Their Own Course on Net Neutrality

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But that could change, following the scrapping of regulations late last year at the federal level governing internet service providers. In the wake of the rule change, widely known by the shorthand of repealing “net neutrality,” more than a dozen states are now considering efforts to put their own rules in place to restore something close to the previous federal regulatory scheme.


Some are trying to create rules that essentially would coax internet providers into following certain standards of behavior. Others are trying to legislate outright what those companies can and can’t do.


“Unfortunately, our federal government, and specifically the FCC, has abdicated its responsibility to protect the internet, and so we now are forced to step in,” California Sen. Scott Wiener, a San Francisco Democrat, said in support of one bill (SB 460) that would restore in the Golden State much of what the former federal regulations required of internet service providers. The measure has passed the Senate and now is before the state Assembly. 


Before going further, it’s worth understanding what the federal net neutrality rules do.


At a basic level, the Federal Communications Commission in 2015 put rules in place that governed internet service providers as Common Carriers – just like telephone companies – under Title II of the federal Communications Act of 1934. After years of a sort of wild west development of the new technology behind the internet, common carrier status put the companies under comparatively strict regulations in terms of what they had to do for their customers, and what they couldn’t do to them.


Those 2015 rules specifically banned certain practices that the FCC said would “harm the open Internet.” Among those new requirements was that internet providers had to allow consumers to use their network to get to any legal destination on the internet. Providers couldn’t block legal sites. For example – and this is hypothetical – if your internet provider was XYZ Cable, and someone published a website called XYZCABLEISTERRIBLE.COM, as long as that website was legal, XYZ couldn’t block it. Critically, providers also couldn’t block applications, or types of services that come through the internet. (Envision an application that perhaps competes with an app or service also provided by your internet provider, such as this.)


Another banned practice under the former federal rule is known as “throttling.” That’s a way of getting around the no blocking requirement by making internet traffic basically unusable. If your internet provider has a video service, for example, and slows down videos coming through a competing service, that’s throttling.


Another prohibited practice under the net neutrality rules was “paid prioritization,” or what some call an internet fast lane. That’s sort of the opposite of throttling – letting content providers pay to have their content delivered faster than other content.


All three of those practices would be banned by California’s proposed legislation, which has cleared the Senate. But California trails Washington, where lawmakers last week endorsed HB 2282, which would impose similar rules for the Evergreen State. That bill now heads to Gov. Jay Inslee (D), who supports the idea and is expected to quickly sign it into law.


Washington and California are just two of at least 29 states with legislation seeking to restore the net neutrality requirements the FCC did away with in December. Another measure, Oregon House Bill 4155, cleared the House last Monday and is now in the Senate.


“I think several of these states are going to pass bills,” Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation, which advocates for open internet issues, told the Capitol Journal.


The internet service providers that pushed for the repeal of net neutrality saw this coming.


“State and local laws governing broadband Internet access service pose a real and significant threat to restoring a light-touch, uniform regulatory framework for broadband service,” officials from one of the largest providers, Verizon, wrote in a white paper submitted to the FCC in October, asking the commission to preempt any such state efforts at an end-around.


“Limiting governmental interference with the Internet is good for consumers and good for providers,” the Verizon paper continues. “Investments in broadband Internet access infrastructure entail large initial expenditures with benefits coming only over the long-term; this makes investment highly sensitive to increased risks, including regulatory uncertainty.


“Allowing every state and locality to chart its own course for regulating broadband is a recipe for disaster,” Verizon continued. “It would impose localized and likely inconsistent burdens on an inherently interstate service, would drive up costs, and would frustrate federal efforts to encourage investment and deployment by restoring the free market that long characterized Internet access service.”


The internet providers have also argued that the market will take care of bad behavior – that it wouldn’t make sense for them to upset customers and lose them. Critics of the companies counter that there isn’t enough competition for it to work that way – many people have few choices as to who they buy their internet service from.


“Over 43 percent of the country has access to only one broadband provider, or to none at all, and in rural America it’s even worse,” Travis LeBlanc, a partner in Boies Schiller Flexner LLP and the former Chief of the Federal Communications Commission’s Enforcement Bureau, told attendees at a National Association of Attorney Generals meeting in Washington D.C. last month. “A 2016 FCC study found that 58 percent of rural census blocks did not have access to any fixed broadband at home.”


The FCC agreed with providers on the need to preempt state legislation, which means all of this ultimately could have to be settled in court. The first state that does pass legislation is likely to be the first defendant in a lawsuit on the issue. Meanwhile, at least 23 state attorneys general, led by New York AG Eric Schneiderman (D), are also suing to have the net neutrality requirements restored.


A growing number of governors are not waiting for lawmakers or the courts. Montana Gov. Steve Bullock (D) signed an executive order in January requiring any ISP provider doing business with the state government to abide by net neutrality principals.


“Montanans expect and rely on the traditional principle that internet service providers will not pick and choose what content they can see - rather, Montanans expect that their internet service providers will be ‘neutral,’” Bullock’s executive order says.


Govs. Andrew Cuomo of New York, Phil Murphy of New Jersey and David Ige of Hawaii, all Democrats, quickly issued similar orders. Vermont Gov. Phil Scott, a Republican, followed suit last Wednesday. Bullock thinks more could soon follow.


“I do hope more states join us in this because the vast majority of Americans want to be sure that we have a clean and open Internet,” he said in an interview with SNCJ at an appearance at a National Governors Association meeting in Washington D.C. 


It’s not surprising that state lawmakers would jump on the issue, which caught a wind of popularity this past winter after the repeal. Millions of their constituents use the internet every day.


“These people have to go somewhere, they have this frustration with the federal system,” says EFF’s Falcon. “They turn to local and state governments.”


But even Falcon and many other backers of restoring the net neutrality rules agree with the companies that it would be better to have one nationwide standard. They just disagree on what it should be.


“The resolution at the end of the day is restoring the federal rule,” Falcon says.


There is a way Congress could do that. U.S. Sen. Ed Markey (D-Massachusetts) has filed legislation (US SB 449) that would allow Congress to bring back the old rules. The bill’s chances in the Senate are thought to be good, but much less so in the House. President Trump has also indicated he would not sign such a measure.


But not everyone is so sure about that. Oregon Attorney General Ellen Rosenblum (D) told SNCJ she thinks the president might be more interested in signing a restoration bill than some think.


“I think the president can read the political winds,” she says. “This really is not a partisan issue, so hopefully if we can get something through Congress we won’t actually have a problem there.”


But even if that doesn’t happen, Falcon says the situation is unpopular enough across the general populace that he predicts it will be reversed another way.


“If the FCC wins (in a fight with Congress, or in a court fight with the states), well, then it’s over if you get a new president. And every Democratic presidential candidate is going to run on restoring net neutrality.”


-- By SNCJ Correspondent David Royse
Note: SNCJ Editor Rich Ehisen contributed to this report