Fast Company: Snubbing FCC, States Are Writing Their Own Net Neutrality Laws

California, New York, Washington, and likely more states are challenging both internet providers and the reach of the federal government.
January 2, 2018

By Sean Captain

For those who either hoped or feared that a December 14 vote by the FCC to scrap net neutrality regulations would settle the matter, it must feel like extra innings of a long hard-fought game. Along with the expected flood of lawsuits by activist groups fighting to preserve net neutrality, states have also taken up the cause. “We all agree that in an ideal world it should be handled at the federal level,” says California state senator Scott Wiener. “But if the federal government’s going to abdicate, then we need to take action, and I’m glad that a number of states are looking at this.”

Along with pursuing lawsuits over irregularities in the FCC process (like millions of fake citizen comments being submitted), several states are crafting their own net neutrality laws, which they will start debating as new legislative sessions commence this month. They would prohibit internet service providers from blocking or hindering access to legal online content sources, or from offering premium-bandwidth “fast lane” deals to others. Washington State was first to act, with Democratic and Republican state representatives debuting nearly identical bills back on December 13 and 14.

Such bipartisanship is rare. In most cases, the charge is led by Democrats, often with anti-Trump overtones. “I would say California and New York are two deep-blue states where Donald Trump is the least popular president in modern history,” says New York state senator Brad Hoylman, who represents a large chunk of Manhattan. He’s teaming up with Wiener, whose district includes all of San Francisco, to craft legislation that each state can use. “We have very similar constituencies in many regards, including technology and immigrants and LGBT folks,” says Hoylman. It would be hard to find a bluer coalition.

LOOKING FOR LEVERAGE

Regardless of their politics, state net neutrality advocates face a tough course through unfamiliar territory. In its lengthy order abolishing net neutrality policy, the FCC asserted the federal government’s right to preempt other laws or policies. “Allowing state and local governments to adopt their own separate requirements, which could impose far greater burdens than the federal regulatory regime, could significantly disrupt the balance we strike here,” reads the FCC’s abolition order.

“Telecommunications in particular—it’s very, very hairy to try to do this without triggering federal preemption,” says Jake Egloff, the legislative aide to New York Democratic assemblymember Patricia Fahy. They have also crafted legislation establishing net neutrality requirements. Rather than regulate ISPs directly, it would exert financial pressure by only allowing the state and local governments to contract with ISPs certified as meeting New York’s net neutrality requirements. “I don’t want to say backdoor, but it is a side door,” says Fahy, whose district includes the state capital, Albany.

The state’s “power of the purse” is just one of the side-door measures her colleague Hoylman and California’s Wiener are considering. They might also make meeting net neutrality standards a prerequisite for awarding cable franchises or providing access to state-owned land or utility poles for laying cables. And they are looking at the front door approach of regulating ISPs directly under consumer protection law. “The FCC issued their fiat that tells the states they can’t do anything. We don’t think the FCC has that power, and they’ve lost that argument in court before,” says Wiener.

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