The repeal of net neutrality rules officially took effect on Monday, opening up the possibility that internet service providers could now throttle, block or otherwise tamper with consumers’ access to the internet.
With the U.S. Congress failing to block the repeal, states have now been taking up the mantle to uphold net neutrality rules. Twenty-three state attorneys general filed a lawsuit in February attempting to block the repeal, while state lawmakers are taking action through both legislation and executive orders.
“We know that when D.C. fails to act, Washington state has to do so,” Washington Gov. Jay Inslee said when the state passed legislation upholding net neutrality, according to the Associated Press. “We know how important this is.”
“The states have a full right to protect their citizens,” Inslee added.
The legislative push
Twenty-nine states have introduced legislation to address net neutrality thus far, according to the National Regulatory Research Institute. An additional nine states have introduced resolutions that support net neutrality principles.
While many states’ legislation is still pending, there have already been some successes. Washington became the first state to pass its own net neutrality requirements in March, with legislation that prohibits ISPs from blocking content, impairing traffic or engaging in paid prioritization.
The second state to adopt legislation was Oregon, which passed a net neutrality law in April. Unlike the Washington legislation, however, the Oregon bill does not impose requirements on ISPs; rather, it blocks the state from doing business with providers who offer preferential treatment to certain web content and applications. The legislation will take effect in 2019.
In May, Vermont enacted its own net neutrality legislation, which requires ISPs to certify their compliance with net neutrality regulations in order to be eligible for a government contract. It also directs the state attorney general to review whether the state’s ISPs are in compliance with the 2015 Federal Communications Commission net neutrality rules and make that information publicly available.
The next state that could potentially enact legislation is California, where a net neutrality bill cleared the Senate in May and now awaits a vote in the state Assembly. The legislation is particularly comprehensive as compared with other states; in addition to re-imposing rules similar to the 2015 net neutrality protections, the bill also takes net neutrality regulations one step further by prohibiting “zero-rating” programs that keep certain content from contributing to monthly data caps.
In addition to enacting legislation, other states are defending net neutrality through executive orders by their governors. Montana Gov. Steve Bullock led the charge in January with an executive order that requires ISPs to uphold net neutrality principles in order to receive a contract from the state.
Bullock said his executive order was meant to provide a “framework” for other states, inviting his gubernatorial colleagues to adopt their own orders.
“There has been a lot of talk around the country about how to respond to the recent decision by Federal Communications Commission to repeal net neutrality rules, which keep the internet free and open. It’s time to actually do something about it,” Bullock said in a statement. “This is a simple step states can take to preserve and protect net neutrality. We can’t wait for folks in Washington D.C. to come to their senses and reinstate these rules.”
Other states have now followed suit. In addition to their states introducing net neutrality legislation, governors in New York, New Jersey, Hawaii and Rhode Island have adopted their own executive orders to uphold net neutrality. Vermont Gov. Phil Scott also imposed an executive order in February, before the state’s net neutrality legislation passed.
Are these state measures legal?
Whether these state measures will stand up to legal scrutiny, however, remains to be seen. In its proposal to repeal net neutrality, the FCC relinquished its oversight over the broadband industry — but also specifically said that the repeal would preempt state and local laws, presumably making state laws that uphold net neutrality impossible.
According to Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation, however, that argument may not hold up in court.
“The FCC itself does not have the authority to preempt states,” Falcon said in an interview with Mic. “There isn’t anything in the Communications Act that gives the FCC that power, and it is weird to make the argument [in which] the FCC says, ‘We have no power to regulate the industry — but we have great power to stop states from passing their own rules about business practices that govern the industry.’”
“You can’t really make those two compute,” Falcon continued.
While Falcon speculated the courts would “probably strike down” the pre-emption clause, however, there’s also a broader question of whether states can regulate the ISPs in place of the federal government. The “dormant commerce clause” gives the federal government power to preempt state law with interstate matters. In the absence of federal oversight, as with the net neutrality repeal, states cannot “unduly burden” interstate commerce efforts with their regulations.
“States can intrude in the interstate commercial space, so long as their interests are sufficiently high enough to do so, and the burden is sufficiently low enough that Congress would find it permissible,” Falcon said.
When it comes to net neutrality, Falcon noted that the question of whether states can regulate ISPs was “uncharted water” and that it was a “close call” to predict how any potential legal challenge would play out. Washington State Rep. Drew Hansen, the sponsor behind Washington’s net neutrality legislation, remained more optimistic, however, telling Ars Technica that he was confident the state’s law would stand up to legal scrutiny.
“The test is whether something substantially impairs interstate commerce,” Hansen told Ars Technica. “The states all the time write consumer protection laws related to the internet without dormant commerce clause problems. Just because the internet is nationwide does not equate to ‘the states cannot regulate conduct on the internet.’”
If the state laws are legally permissible, Falcon noted that they are more of an “interim measure” until the federal government restores net neutrality regulations, rather than a permanent solution. After passing in the Senate, legislation to uphold net neutrality is currently at a standstill in the House of Representatives, where there is an effort underway to force a vote through a discharge petition.
“Everyone at the state legislative front that I have talked to and worked with, they all understand that these are efforts to preserve net neutrality until we can get the federal rules back,” Falcon said. “There is a real understanding that this is a matter of responding to the abandonment of federal oversight, until that oversight returns.”
Falcon added, however, that these state efforts are still an “effective” way to uphold net neutrality. In addition to their effect on states with a large market for ISPs, such as California, Falcon said the state measures are a “really important” way to concretely demonstrate net neutrality’s nationwide support. According to a December poll conducted by the University of Maryland, 83% of voters oppose repealing net neutrality, including 75% of Republicans.
“Having each state government and their constituents really just say, ‘We are in favor of a neutral network, versus just what [ISPs] want’ — each domino that falls in that space makes it virtually impossible for any sort of victory for [the ISPs],” Falcon said. “The more constituents they keep losing in a real direct way, the more their influence on this issue declines on the legislative front.”