Source: LegiScan and the National Conference of State Legislatures
Legend: Gray = No legislation or executive order, yellow = executive order only, green = executive order and legislation pending, red = legislation pending, blue = legislation passed, purple = legislation passed and pending, teal = legislation failed
Editor's note: The map information is current as of April 25, 2018.
With portions of the Federal Communications Commission’s (FCC) net neutrality repeal order officially taking effect earlier this week, some states are facing pressure to get workarounds up and running.
Nearly two dozen states are not wasting time. Since the FCC voted in December to repeal the 2015 Open Internet Order, 28 states have introduced bills that require Internet service providers to adhere to some of the net neutrality provisions that were previously enforced by the FCC, reports the National Conference of State Legislatures.
Of this group, only Oregon and Washington state have had success in passing net neutrality laws.
California state Sen. Scott Wiener, D-San Francisco, currently has a bill, SB-822, working its way through the California state legislature. Wiener’s SB-822 was heard in the Senate Judiciary Committee on Tuesday and needs to move on to the Senate Appropriations Committee, then the full Senate for a vote before the Assembly will address it.
"Senate Bill 822 is re-establishing the Obama-era regulations created under the 2015 FCC order, so the people of California will have the same protections as were in place under those regulations," Wiener told Government Technology. "Hopefully the protections provided in other states will also create similar protections. Ideally net neutrality would be handled on the federal [level], but until Congress is willing to do enact legislation, it’s up to the states to protect the Internet access of our residents."
Governors in Montana, Vermont, New Jersey, New York and Hawaii, meanwhile, have used a different workaround. These governors issued executive orders that require ISPs to abide by net neutrality principles if they want to seek a contract with their respective states. This carrot-and-stick approach is also echoed in a number of the bills that states introduced since the FCC ruling in December.
Under the FCC’s Restoring Internet Freedom Order, the FCC removed itself from overseeing the way Internet service providers manage their networks and placed that responsibility upon the Federal Trade Commission. Additionally the FCC’s order pre-empts states from requiring ISPs to adhere to net neutrality principles.
These principles require ISPs to provide a level playing field to all content providers that use their networks, prohibiting ISPs from providing faster Internet speeds to websites that are willing to pay a premium for such speed, or blocking content or throttling down Internet speeds for competitors, as an example.
IT leaders of state and local governments worry their constituents may potentially face higher costs if ISPs increase rates for some content providers which in turn may pass that along to their customers. Meanwhile, government agencies are also pondering the potential impact of the net neutrality repeal on their efforts to make broadband access more available throughout their communities, especially low-income and rural areas.
In addition to filing a flurry of bills to put into play their own net neutrality laws in their state, a coalition of 23 state attorneys general filed a lawsuit against the FCC, challenging its repeal of President Obama’s 2015 Open Internet Order, according to CNET.
“The FCC has said that it is pre-empting state laws aimed at enforcing net neutrality principles. But whether the FCC has such pre-emption authority is an open question," said Tejas Narechania, assistant professor of law at the University of California, Berkeley. "The last time the FCC purported to pre-empt state laws there, about state restrictions on municipally owned and operated broadband services, the commission lost. I think there’s an argument to be made that the FCC doesn’t have the pre-emption authority it claims here, especially because the FCC now has to clear a pretty high bar to prove it has such pre-emption power.”
He added the states are also relying on several sources of state power — such as their traditional regulatory powers, franchising authority and purchasing power — so the FCC will have to demonstrate it can pre-empt all of the states’ authority.
The FCC will also likely have a tough time undoing governors’ executive orders, as well as any state bills that tie the states’ procurement contracts to an ISP’s willingness to abide by net neutrality provisions, Narechania said. States have traditionally had a lot of discretion in coordinating their own internal affairs, and so the FCC will have to show that Congress has clearly granted it the authority to limit the states' powers to pick their contracting partners, he added.
ISPs, of course, can always choose not to bid on government contracts, but often these contracts are substantial in size and potentially lucrative, industry watchers say. Montana, which was the first state to issue a net neutrality executive order tied to its ISP contracts, apparently has a healthy interest from ISPs nonetheless.
“The Montana Department of Administration is still in the process of reviewing bids for our state’s upcoming transport contract," said Marissa Perry, press secretary for Montana Gov. Steve Bullock. "We’ve been happy with the responses from both local and national ISPs so far and look forward to sharing more once our contract process is complete."
She added that the review process should be complete within a month.
States also may find success by using their legislative powers under federal law — 47 U.S.C. 224 — to regulate pole attachments, Narechania said.
“[It] lets states opt out of the federal scheme for regulating pole attachments so that they can set their own ‘terms and conditions,’ including, perhaps, net-neutrality-related terms,” Narechania said. “And the FCC's latest net neutrality order expressly says that it doesn't limit this state power. So that might be one other fruitful route.”
Dawn Kawamoto is a former staff writer for Government Technology.