Verizon, AT&T & Comcast Are Trying to Ban State Net Neutrality Laws

Washington State Gov. Jay Inslee (rear) holds a press conference with Rep. Drew Hansen, Rep. Norma Smith, Sen. Manka Dhingra, and Sarah Bird, Chief Executive Officer of Moz.com. Earlier this month, Washington became the first state to pass a law protecting net neutrality.

Washington State’s net neutrality law is just the beginning of a huge ISP headache.  But what if the FCC’s net neutrality rollback was much stronger?  That’s exactly what major ISPs like AT&T, Verizon, Comcast, Cox and Frontier are demanding from members of Congress.

Be careful what you wish for.

Major ISPs got their biggest wish, thanks to FCC chairman Ajit Pai.  But somehow, they didn’t anticipate that 36+ U.S. states would challenge the FCC’s aggressive net neutrality rollback.  Accordingly, major ISPs like AT&T, Verizon, and Comcast are now demanding stronger laws to enforce the FCC’s order. 

Since the rollback, legal experts have pointed to the FCC’s inability to actually enforce its own orders.  The result?  ISPs are now facing a complex patchwork of state-by-state net neutrality regulations.  And that’s a compliance nightmare.  “As we have cautioned repeatedly, we simply cannot have 50 different regulations governing [broadband],” stated USTelecom, a major trade association for Internet providers. 

“It’s time for Congress to step up and enact legislation to make permanent and sustainable rules governing net neutrality.”

USTelecom’s membership includes AT&T and Verizon, among other ISPs.  Separately, Broadband for America, a lobbying group whose members include Comcast and Cox Communications, has issued a similar demand.  The group recently emailed Digital Music News on the matter.

Meanwhile, the rollback train is rolling ahead.  The Federal Communications Commission’s decision to scrap the rule has officially been published in the Federal Register.   And the repeal is just weeks away from becoming law (or, scraping the pre-existing law). 

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By law, the new agency rules go into effect 60 days of their publication in the Register — provided a formal challenge isn’t launched.  The FCC’s 284-page order was entered on February 22nd.

But what happens if the country doesn’t want to obey the FCC’s new rules? 

That’s when things get really, really tricky.  And, a lot more complicated for ISPs. 

In a move that slapped the FCC’s assumed authority in the face, Washington State Gov. Jay Inslee (D), recently signed a set of net neutrality rules into law.  Declaring the ‘other Washington’ – i.e, Washington, D.C. — as ‘going AWOL,’ Inslee forcefully signed the statewide net neutrality bill into law.  Inslee described an intent to protect his own citizens from an FCC gone rogue.

A slightly different bill is about to be signed by Oregon governor Kate Brown.  And the California Senate has just introduced the strongest state neutrality bill to date, one that declares the FCC’s authority over states to be non-existent.  

In fact, 36 U.S. states have now challenged the FCC’s net neutrality rollback — in one form or another. 

And that doesn’t include pushback from the District of Columbia and the mayors of 12 major U.S. cities and municipalities.  

A breakdown of the resistance against the FCC’s net neutrality rollback (updated March 19th).  Black = state law passed protecting net neutrality; Orange = Executive Order signed by state governor to protect net neutrality; Dark Gray = net neutrality bill successfully passed both state legislative chambers; Blue = net neutrality bill introduced into legislature; Brown = state attorney general filing suit against the FCC; Green = 100+ municipalities have approved taxpayer-funded ISPs; Red Star = mayor is a member of Mayors for Net Neutrality Coalition; Light Gray = no state action.

According to analysts, this marks the beginning of what could soon become a throbbing headache for ISPs.  Ironically, the FCC’s rollback could make things worse for them.

Instead of stripping away ‘onerous’ net neutrality rules, ISPs like Comcast, Verizon, AT&T, and Cox Communications are facing something unexpected: a patchwork of differing state laws.  Of course, the internet is difficult to restrict to specific geographic areas, making compliance extremely expense — if not practically impossible.

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In fact, ISPs may be forced to implement even more stringent net neutrality laws nationwide, just to stay compliant with laws in states like California, Oregon, and Washington.  Ditching net neutrality in neighboring regions like Nevada, Arizona, and Idaho could prove impossible.  Even states further way from those with net neutrality laws could pose practical problems.

And compounding the issue is that each state is passing its own version of a net neutrality law.  In fact, many have their own requirements and schedules related to reporting and compliance. 

Indeed, old ISP crony and FCC Commissioner Ajit Pai may have led his friends down a rathole, one that will end up eating their profits in the end.  Ultimately, Pai’s inability to gauge political winds — or his arrogant refusal to consider them — has placed his pals in a pinch.

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And, on a legal note, it now appears that Pai was all bluster.  

Barbara van Schewick, a Stanford Law School professor who helped to shape the California bill, explained that the FCC actually has little authority to override (or ‘preempt’) state measures.  “While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid,” van Schewick said. 

“According to case law, an agency that does not have the power to regulate does not have the power to preempt.  That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.”

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That sounds really, really scary to ISPs.  Fearing that more states will pass their own net neutrality laws, the ISPs are now appealing to Congress to make tougher net neutrality measures.   That includes outright bans on statewide net neutrality laws.

GOP Senator Introduces a Bill That Would Ban U.S. States from Making Net Neutrality Laws

Accordingly, bought members of Congress have introduced legislation that would make it explicitly illegal for U.S. States to implement their own neutrality laws. 

That includes Louisiana Senator John Kennedy, a staunch Trump ally who recently introduced a measure that would ban state-wide measures.  

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Kennedy’s bill, S.2510, would render laws from states like Washington moot.  Here’s a quick description of the bill, which masquerades as a ‘tough’ neutrality measure but is actually heavily backed by ISP lobbying dollars.

“A bill to amend the Communications Act of 1934 to ensure Internet openness, to prohibit blocking of lawful content, applications, services, and non-harmful devices, to prohibit impairment or degradation of lawful Internet traffic, to limit the authority of the Federal Communications Commission and to preempt State law with respect to Internet openness obligations, to provide that broadband Internet access service shall be considered to be an information service, and for other purposes.”

That complements a similarly-titled bill introduced in the House (H.R. 4682), forwarded by Republican representative Marsha Blackburn.  

Both bills are undoubtedly going to be gaining steam, especially with millions coming from mega-ISPs like Comcast and Verizon.  Indeed, this war is just getting started, though it’s unclear if quelling a rebellion among U.S. States is good for broadband business.

 


 

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