States Take Sides on Net Neutrality

Advertising Law

The states have taken matters into their own hands as the battle over net neutrality continues, even after the Federal Communications Commission’s (FCC) vote to repeal the rules.

In December, the agency passed the Restoring Internet Freedom Order by a vote of 3 to 2, revoking the 2015 Open Internet Order that categorized broadband access as a utility service regulated under Title II of the Telecommunications Act. The 2015 Order also prevented common carriers from accepting payments to prioritize some sites over others and prohibited them from blocking access to legal content or throttling any Internet traffic.

The repeal of the 2015 Order hasn’t ended the fight, however.

Attorneys general from 21 states and the District of Columbia filed a placeholder lawsuit in D.C. federal court asking that the repeal Order be invalidated. “State Petitioners seek a determination by this Court that the Order is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act,” according to the complaint.

The plaintiffs—attorneys general from California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and the District of Columbia—also argued the Order runs afoul of federal laws including the Communications Act of 1934 and the Constitution.

The protective petition for review is an attempt by the states to preserve their rights to be included in the judicial lottery depending when the Order is deemed final. Consumer watchdog groups, including Free Press and Public Knowledge, filed similar suits.

“The repeal of net neutrality would turn internet service providers into gatekeepers—allowing them to put profits over consumers while controlling what we see, what we do, and what we say online,” said New York AG Eric T. Schneiderman, who is leading the state action, in a statement about the lawsuit. “This would be a disaster for New York consumers and businesses, and for everyone who cares about a free and open internet.”

In addition to the lawsuit, some states are also enacting their own versions of net neutrality.

For example, the Nebraska legislature is considering a bill that would prohibit Internet service providers from “impair[ing] or degrad[ing] lawful Internet traffic on the basis of content, application or service or use of a nonharmful device, subject to reasonable network management.” The proposed legislation would also prohibit paid prioritization with an exception for circumstances where the ISP can demonstrate it benefits the public and “would not harm the open nature” of its Internet service.

Lawmakers in California have proposed multiple bills related to net neutrality, including one that would ban blocking, throttling and paid prioritization.

More indirect efforts to enforce net neutrality are also being pursued in various states. Montana Governor Steve Bullock issued an executive order requiring ISPs to follow net neutrality principles as a condition of securing a contract with state agencies. Set to take effect on July 1, the order requires providers who want a state contract to refrain from blocking or throttling traffic, engaging in paid prioritization, or unreasonably interfering with people’s ability to access online content and services.

Two days later, New York Governor Andrew M. Cuomo signed a similar executive order, effective March 1.

To read the complaint in New York v. FCC, click here.

Why it matters: The state-by-state approach to net neutrality is certainly less effective a remedy than reinstatement of the FCC rules, but it keeps the battle alive and could force some of the larger ISPs to follow the net neutrality principles in order to maintain business in the state. While the Restoring Internet Freedom Order contains provisions that prohibit states from creating or enforcing their own state-specific net neutrality regulations, many have questioned whether the provisions would be upheld in court.



pursuant to New York DR 2-101(f)

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