States and Cities Keep the Battle for Net Neutrality Alive

States are starting to make good on their promises to fight for net neutrality in the wake of the Federal Communications Commission's decision to jettison rules that banned broadband providers from blocking or discriminating against internet content.

On Monday, Montana Governor Steve Bullock signed an executive order effectively barring state agencies from doing business with internet service providers that violate net neutrality. New York Governor Andrew Cuomo signed a similar order on Wednesday. The moves follow a lawsuit filed last week by 21 states and the District of Columbia challenging the FCC's decision to overturn its own protections.

Montana is the first state to take action to encourage broadband providers to follow the principles of net neutrality, but others, including California, New York, Rhode Island, and Washington are considering legislative action. Meanwhile, New York City officials published a request for information about how the city can best monitor the connection speeds and network performance of broadband providers. Mayor Bill de Blasio promised the city would do "everything within our power to keep the internet open and accessible for all" after the FCC voted to repeal its rules.

Activists and lawmakers are still trying to restore net neutrality protections at the federal level, but former FCC enforcement chief Travis LeBlanc says state and local action probably has the best chance of making an impact in the short term.

Activists say 50 senators are supporting a measure that would reverse the FCC's decision and restore the agency's Obama-era net neutrality rules. But LeBlanc, now a partner at the law firm Boies Schiller Flexner, says the legislation faces stiffer opposition in the House, and would need to be signed by President Donald Trump.

The state lawsuit, led by New York state attorney general Eric Schneiderman, argues that the FCC's decision to reverse its net neutrality rules less than three years after adopting them is a violation of the Administrative Procedure Act, which bans federal agencies from making "arbitrary and capricious" rules. All 21 states with Democratic attorneys general joined the suit, Ars Technica noted. No state with a Republican attorney general joined the suit.

Several advocacy groups have filed similar suits. But LeBlanc says the suits could take years to resolve. States and cities can have a more immediate impact, but there are questions about just how far they can go to protect net neutrality.

When the FCC voted last month to overturn its rules, the agency also banned states from passing their own rules mandating net neutrality. States will likely challenge those rules, but many are also trying to work around them. The executive order in Montana, for example, doesn't mandate net neutrality directly, but uses the state's role as a major broadband customer as leverage over the industry.

"This is a simple step states can take to preserve and protect net neutrality," Bullock said in a statement. "We can’t wait for folks in Washington DC to come to their senses and reinstate these rules."

Legislators in Rhode Island and New York have proposed bills that would take a similar approach. Washington Governor Jay Inslee initially proposed a similar strategy last year, but the state House of Representatives is now considering a bill that would ban blocking and throttling of content, and limit the creation of "fast lanes" to cases in which a broadband provider can demonstrate that it would be in the public interest. California, likewise, is considering two separate bills that would mandate net neutrality.

If Washington or California pass one of these bills, the FCC will likely challenge the states. But LeBlanc thinks the states have a strong case that the FCC lacks authority to preempt state laws over net neutrality. "It's hard to say there's a conflict with federal rules when the FCC is removing rules, and it's hard to say the government has occupied the field, when they're not doing anything on the field," he says.

There’s no guarantee the states will act. After Congress overturned a set of broadband privacy protections last year, lawmakers in 22 states proposed their own privacy rules, according to the National Conference of State Legislatures. But only Colorado has adopted one of these proposals so far.

Another challenge for states trying to police net neutrality will be determining whether internet providers are favoring certain content. That's the challenge that New York City is tackling with its request for proposals. Software such as the new iPhone app WeHe tries to spot net neutrality violations by comparing the connection speeds of various video sites to see if some are significantly faster or slower than others. But it can be tough to prove that such disparities are caused by deliberate action on the part of broadband providers, as opposed to temporary network congestion or other technical issues.

LeBlanc says that’s one advantage of having net neutrality protection shift to states and cities for the time being: Each one can experiment with different policies and enforcement techniques.

Updated 1/24/2018, 1:00pm EST: This story has been updated to include New York Governor Andrew Cuomo's executive order.

Staying Neutral

  • After remaining muted for most of last year, big tech companies recently pledged to join lawsuits to preserve net neutrality.
  • Net neutrality is likely to be a campaign issue in congressional and other elections this year.
  • Without net neutrality, the internet may begin to resemble mobile-data plans, where preferred services are exempt from data caps.

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