Statehouses Are The New Arena In the Battle for Net Neutrality

FCC Chairman Ajit Pai takes a drink from a mug during the meeting where the FCC voted on net neutrality, in Washington.

FCC Chairman Ajit Pai takes a drink from a mug during the meeting where the FCC voted on net neutrality, in Washington. Jacquelyn Martin/AP File Photo

At least 14 states have signed or introduced orders and bills seeking to enforce net neutrality.

States’ rights are back in vogue. After the Federal Communication Commission’s (FCC) vote to repeal net neutrality last December, Republicans, and Democrats across the US are looking at executive orders and bills that limit ISPs ability to flout net neutrality principles. A consortium of public interest groups including Free Press report that at least 14 states have signed or introduced orders and bills seeking to enforce net neutrality, while seven states are considering them.

Net neutrality has awakened a vociferous opposition. On Dec. 14, the FCC voted to repeal the Open Internet Order along party lines. The vote handed FCC chairman Ajit Pai a major victory allowing US telecoms to block, slow, or charge more for certain content.

But states from ruby-red Nebraska to coastal California are rebelling against the FCC’s decision to repeal net neutrality rules. A few national Republican officials, Senator Susan Collins of Maine and Colorado representative Mike Coffman among them, have broken with the Trump Administration on the issue, and Democrats claim to have bipartisan support to overrule the FCC ruling. Coffman and other Republicans’ requests to stop or delay the vote went unheeded.

The fight is now in Congress, governors’ mansions, and statehouses. On Jan. 8, US Senator Ed Markey of Massachusetts announced he had enough votes to trigger the Congressional Review Act permitting Congress to begin rolling back new agency rulings. Republicans used the Act last year to repeal 15 rules approved under the Obama Administration. If it passes (which is a long shot) it will permanently reverse the FCC’s ruling and prevent the agency from similar actions in the future, a potential nightmare for internet service providers (ISP).

Although the decision must get the President’s signature, mounting public pressure means the White House might decide to sign off. The Trump Administration is already suing to block the merger between Time Warner and AT&T, a major ISP, that it said would put “too much concentration of power in the hands of too few.

Ernesto Falcon, the legislative counsel at the Electronic Frontier Foundation says the fight to save net neutrality was lost at the FCC, but won the public, potentially setting the stage to overturn it. “The ISP lobby has to ask how they are going to win a fight that’s overwhelming opposed by the public,” he said by phone. “We’re still in a country where public opinion matters…They’ve lost the public debate.” One poll by the University of Maryland in 2017 found 83% of Americans (paywall) disapproved of the FCC’s plan to overturn net neutrality rules, while only 16% were in favor.

US Telecom, the industry trade group representing ISPs, insisted broadband providers “support an open internet with bright line net neutrality rules” but objected to states imposing net neutrality rules of their own arguing it fell under federal jurisdiction as an interstate service. “We simply cannot have 50 different state regulations governing our internet – consumers expect and demand a single, consistent, common-sense approach,” wrote US Telecom president and CEO Jonathan Spalter by email. “Now, more than ever before, we need Congress to step forward and enact bi-partisan legislation to make permanent and sustainable rules.”

Politicians at the state level disagree. Their first tactic has been to block ISPs wishing to do business with state governments. The governors of New York and Montana signed such executive orders this month blocking any ISPs that don’t meet net neutrality principles from publicly-funded contracts. Legislators in statehouses are drafting similar rules. This requirement will prove to be an enormous deterrent in states like California where ISPs have millions of dollars in state contracts at stake. In smaller states, there’s far less leverage.

A second approach is recreating much of the FCC’s net neutrality requirements at the state level. For example, Alaska’s HB 277 prevents broadband internet service providers from unlawful acts or practices under its Alaska Unfair Trade Practices and Consumer Protection Act. Many of these are bundled up with privacy regulations since the FCC voted to allowed ISPs to track users individuals’ browser history and sell it third-parties or target advertising. States have generous leeway to protect their citizens’ rights to privacy.

But these should prove more difficult in courts given their deference to federal agencies around issues of interstate commerce. The FCC’s repeal also sought to preempt state and municipal governments from regulating ISPs.

Ryan Singel, a fellow at the Center for Internet and Society at Stanford Law School, believes that legislation may survive judicial scrutiny, and the political prospects for defending the ruling are dim. “The sheer number of efforts across the states and across party lines goes to show how badly ISPs and FCC Chairman Ajit Pai misplayed their hands by ramming through a total repeal of net neutrality protections without regard to public or expert input,” he wrote by email. “It’s likely a preview of net neutrality being a prominent issue in the 2018 mid-terms and beyond.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.