More than a dozen states have started legislative responses to the FCC's ruling to roll back net neutrality, but the bills are likely to face legal challenges.
Conduct a simple Internet search, and you'll find that at least 14 states have initiated legislative responses to the recent Federal Communications Commission ruling to reverse Obama-era Internet protections. And not all these states are deep blue, as one might expect, with some very red states joining the action too.
In fact, Montana Gov. Steve Bullock is so serious about how the ruling would adversely affect his constituents that he signed an executive order on Jan. 22 ensuring Internet service providers with a government contract cannot block or increase charges for faster delivery of websites. At least three national landline and broadband providers hold contracts in the state. New contracts signed after July 1, 2018, will be governed by the decree.
While more states may add their own legislation to these efforts, legal experts say the bills will be met by legal challenges. According to the FCC, it has the right to pre-empt state laws and policies. “Allowing state and local governments to adopt their separate requirements, which could impose far greater burdens than the federal regulatory regime, could significantly disrupt the balance we strike here,” the FCC’s order states.
Proponents of legislative solutions to the FCC's ruling say that despite the block, they will prevail because net neutrality promotes democracy.
“We need to be sure that people can access websites and information freely and fairly,” said California Sen. Scott Wiener, who introduced his bill on Jan. 3. “If the FCC is going to destroy net neutrality and create a system that favors certain websites just because they can pay more money, California must step in and ensure open Internet access in California.”
In a collaboration that spans the breadth of the country, Wiener is partnering with New York state Sen. Brad Hoylman, who introduced a similar bill. “We wanted to combine our legal expertise and do something bi-coastal,” Wiener explained.
Hoylman said his bill’s passage hangs on whether New York Democrats can regain control of the state Senate. “There are several Senate seats open, so there will be a special election soon,” Hoylman said. “If we [Democrats] gain control, the governor has promised to sign this bill.” He hopes that there will be some action on the bill in the spring time.
While the lawyers Hoylman has spoken to believe that state legislators have the legal standing to override the FCC ruling, he said a legal fight seems inevitable. He said crafting the right legislation could give them an upper hand in the courtroom. New York and California are heavy hitters, and any effort by a combination of the two might shake the FCC's resolve.
Out in front of the legislative effort was Washington state with bipartisan bills introduced on Dec. 13. Republican legislator Norma Smith’s bill requires ISPs to “disclose accurate information regarding the network management practices, performance and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices.”
Democrat Rep. Drew Hansen introduced a similar bill. Both legislators represent rural areas of Washington where there's great concern over open access to the Internet.
“The broadband companies effectively have a monopoly in many areas of this state, particularly in the more rural areas,” Hansen told KTTH Seattle.
"The states have always had broad consumer protection authority. We regulate consumer protection on the Internet all the time,” he continued. “There’s no general pre-emption authority. You have to have a constitutional provision or a statute that gives Congress the authority to pre-empt state laws.”
While these states represent the more progressive coastal areas, flyover states often thought of as much more conservative are also introducing their legislation. In Nebraska, rural entrepreneurs worry about having free and open access to the Internet, said Sen. Adam Morfeld, D-District 46. His bill, LB 856, was introduced on Jan. 5.
"My constituents rely on the high-speed Internet; I have received a lot of correspondence on the FCC ruling," he told Government Technology. "Free and open access is important to businesses and individuals no matter what political party they favor."
Morfeld said he has received bipartisan support from members of the citizenry and legislators. To pass his bill, Morfeld will spend a lot of time educating his peers about what the FCC ruling means for the state. He expects a vote on the measure in the next month.
Ernesto Falcon, legislative counsel for the Electronic Frontier Foundation, says states should be prepared to face a legal challenge. Legislators need to focus their bills narrowly on challenging intrastate infrastructure rights as opposed to interstate activities, according to Falcon.
Here is an example of the elements of California SB 460 (de Leon) that could be contested by the FCC because its focus is not narrow enough:
An Internet service provider shall not engage in any of the following activities:
(a) Blocking lawful content, applications, services, or non-harmful devices, subject to reasonable network management practices as determined by the commission.
(b) Impairing or degrading lawful Internet traffic by Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management practices as determined by the commission.
(c) Engaging in paid prioritization, or providing preferential treatment of some Internet traffic to any Internet customer.
(d) Unreasonably interfering with, or unreasonably disadvantaging, either a customer’s ability to select, access, and use broadband Internet access service or lawful Internet content, applications, services, or devices of the customer’s choice, or an edge provider’s ability to make lawful content, applications, services, or devices available to a customer.
(e) Engaging in deceptive or misleading marketing practices that misrepresent the treatment of Internet traffic or content to its customers.
“It is important that states prepare for a judicial challenge,” he said. “I guarantee that major ISPs will push the FCC to sue.” The Electronic Frontier Foundation is an international nonprofit digital rights group founded in the 1990s to promote Internet civil liberties.
In its December ruling, the FCC reclassified broadband providers as subject to Title 1 of the Communications Act, which shelters them from few federal statutory obligations as a pre-emptive move to prevent state actions, he said.
"Congress has never pre-empted the states from regulating companies that communicate by wire,” said Falcon. "States have power over charges, classifications practices, services facilities or regulations for or in connection with intrastate communication by any carrier. States need to focus (their bills) on the state infrastructure, used by ISPs, that the states support,” he added.
“When it is possible to draw a clear division between intrastate and interstate activities, the Communications Act allows federal and state governments to regulate within their prospective spheres,” he wrote in a memo to California legislators. The Communications Act also explicitly allows states to regulate business practices of ISPs, so long as the activity being regulated is intrastate.
According to Falcon, the bill introduced by California State Senate President Pro Tem Kevin de Leon, SB 460, must be rewritten and narrow its focus. Many of the state’s laws include issues that could be construed as interstate issues, he said.
“States need to focus on leveraging assets that they have already put in place that are used by ISPs,” said Falcon. Things like “cabling, conduit and utility poles are examples of assets the state has supplied that ISPs depend on to flourish. The government of California has spent hundreds of millions of dollars on these assets.”
States that have taken or are contemplating legislative action as of Jan. 23, 2018:
Alaska, California, Connecticut, Illinois, Massachusetts, Minnesota, Montana, Nebraska, New York, North Carolina, Rhode Island, Virginia, Washington and Wisconsin