Statehouses Are The New Arena In the Battle for 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.

Thx to everyone who has contacted me in regards to #NetNeutrality. Below is the letter I sent to Chairman @AjitPaiFCC today to ensure the continuation of a free and open #internet. pic.twitter.com/oKqh7lxaLI

— Rep. Mike Coffman (@RepMikeCoffman) December 12, 2017

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.”