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States Push Back on Net Neutrality

A new front is emerging in the fight to save net neutrality: states and localities. On December 14, the FCC voted to gut net neutrality protections limiting the power of internet service providers (ISPs) to block, throttle, degrade or assign preference to some online content and services over others, and we predicted potential Congressional action and legal challenges. Less clear at the time was the role state or local policymakers might take.

Now, we are beginning to see some trends emerge:

Some state lawmakers have argued that they have an obligation to protect consumers with net neutrality rules and that local governments can approve or deny requests by telecommunications providers to operate in their states. At least 17 states have introduced net neutrality legislation, and more are expected soon. So far, the bills have been falling into three categories:

  1. Some states have passed bills that state a general sense of disapproval or that provide bright-line net neutrality rules for the whole state. A joint Senate resolution in Alaska urges Congress to overturn the FCC order, while a bill in Nebraska seeks rules against blocking, throttling and degrading of internet traffic while also banning paid prioritization of content. These bills may meet with a challenge because of a section of the final order from December, in which the FCC asserts authority to prevent states from pursuing laws inconsistent with the net neutrality repeal.
  2. Other states are introducing measures that would require ISPs to certify they are abiding by net neutrality rules in order to do business with the state, such as the bill in Rhode Island and one in New York State. Last week, Montana’s governor signed the first Executive Order that would achieve the same goal.
  3. And the third category of potential action includes bills or ordinances that would give preference or incentives to ISPs that comply with net neutrality rules for services purchased or used by public entities.

It’s worth noting that bills like those in Nebraska appear most likely to be challenged based on the FCC Order’s language pre-empting state or local net neutrality protections. Legal challenges to those in categories two and three are less clear as they are more in the realm of contract law.

In addition to legislation, states can take the FCC to court. Twenty-two states have signed on to a lawsuit led by New York Attorney General Eric Schneiderman, who had encouraged the FCC to delay their vote after discovering that 2 million identities may have been stolen for fake comments submitted during the FCC’s public comment period. When the FCC refused to cooperate, a multistate lawsuit was filed on the grounds that the public comment process was corrupted.

Other Opportunities
Local governments also have power over ISPs due to access and rights of way they are granted. When it comes time to negotiate a new agreement, the city or state generally contracts an independent third-party evaluator to do a needs assessment. That report can serve as a starting point for the city to negotiate. From there, the city or states can require the company to commit to their requests. Some policymakers have suggested making net neutrality conditions part of this process.

What’s next?
We will track these activities and keep ALA members informed about local and state actions as they come up. In the meanwhile, library advocates can:

  1. Stay informed via District Dispatch
  2. Sign up for alerts from ALA so we can reach you quickly when direct action is needed. Right now, you can email your members of Congress and ask them to use a Joint Resolution of Disapproval under the CRA to repeal the recent FCC action and restore the 2015 Open Internet Order protections.
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Ellen Satterwhite

Ellen Satterwhite a Washington Office Policy Fellow and Vice President of the Glen Echo Group. She has years of experience at the intersection of technology and policy, including as a co-author of the FCC’s National Broadband Plan and as Consumer Policy Advisor to the Commission. Satterwhite earned a Master’s in Public Affairs from the LBJ School of Public Affairs at the University of Texas at Austin.

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