New York Joins States Trying to Restore Net NeutralityBy
Montana also issues an executive order on state procurement
Critics say gambit runs afoul of FCC’s authority over states
New York has joined a growing roster of states pledging to use their buying power to force broadband companies to honor the spirit of net neutrality.
Governor Andrew Cuomo on Wednesday signed an executive order barring state agencies from doing business with internet providers that block rivals’ web traffic or charge more for faster service. The move follows a similar order this week from Montana’s Democratic Governor Steve Bullock.
“The states are stepping up,” said Gigi Sohn, a fellow at the Open Society Foundations and former Federal Communications Commission aide who helped write the net neutrality rules that the agency gutted in December. "There’s a void and the states want to fill it.”
The FCC, in rescinding the Obama-era open web rules last month, included a clause aimed at preventing states from adopting their own standards. But some advocates believe the use of state contracts as leverage will withstand legal challenges -- and might pressure internet service providers such as AT&T Inc. and Verizon Communications Inc. to keep honoring the former rules.
The broadband companies have pledged not to block or slow traffic notwithstanding the absence of the rules, which they said gave the FCC too much power.
Proposals using a variety of tactics have surfaced in at least 11 states to restore net neutrality principles, said Tim Karr, a spokesman for Free Press, a policy group that favors restoring the net neutrality regulations. Legislatures of Rhode Island and California are considering bills that include procurement restrictions like New York’s. Measures in Massachusetts and Georgia would set state net neutrality rules.
Microsoft Corp. has urged lawmakers in its home state of Washington to pass their own net neutrality law. And New York City Mayor Bill de Blasio wants to monitor how telecommunications providers serve broadband customers with a “Truth in Broadband” proposal.
The aim is to “hold internet service providers accountable for discriminatory practices,” de Blasio said in a news release announcing the initiative on Tuesday. Without monitored transparency, people cannot know if companies are honoring their claim not to block or throttle content, he said.
“We can’t wait for folks in Washington, D.C., to come to their senses,” Montana’s Bullock said in an emailed release. He invited other jurisdictions to follow suit after he signed his order on Tuesday.
Cuomo’s order requires recipients of state contracts, beginning March 1, to adhere to net neutrality principles of not blocking or slowing web traffic, or demanding payment for faster passage over their networks -- the key aspects of the rule voided in a vote led by FCC Chairman Ajit Pai, a Republican who was chosen by President Donald Trump.
"The FCC’s dangerous ruling goes against the core values of our democracy, and New York will do everything in our power to protect net neutrality and the free exchange of ideas," Cuomo said in an emailed statement. “With this executive order, we reaffirm our commitment to freedom and democracy and help ensure that the internet remains free and open to all."
Telecommunications companies that do business with New York state include AT&T, Verizon and Frontier Communications Corp., according to a list compiled by Cuomo’s office.
Broadband providers reacted with alarm to the prospect of a welter of regulations.
“We simply cannot have 50 different regulations governing our internet -- consumers expect and demand a single approach,” Jonathan Spalter president of USTelecom, a trade group with members including AT&T, Verizon and CenturyLink Inc., said in an emailed statement.
Brian Dietz, a spokesman for NCTA - The Internet and Television Association, representing cable providers including Comcast Corp. and Charter Communications Inc., agreed in an email. “State by state actions aren’t the answer,” he said.
Both trade groups have called for Congress to write a law to replace the FCC’s stricken rule. AT&T in an advertisement published Wednesday asked Congress for an “Internet Bill of Rights” to set boundaries for companies’ online behavior in order to protect consumers. Supporters of the stricken net neutrality rules dismissed the call as a ploy to ward off tough regulation.
States Versus Feds
Congress has been unable to agree on the topic. Lawmakers appear polarized, with Democrats focused on votes to undo the December repeal and suspicious that Republican proposals would hamstring regulators.
Measures that center upon procurement, like Montana’s or New York’s, don’t run afoul of the FCC’s preemption ban, in part because no company needs to do business with a state and so any restrictions are voluntary, said Travis LeBlanc, a former FCC bureau chief who is a partner with Boies Schiller Flexner LLP.
State laws that lay out net neutrality rules might be challenged by trade associations for telecommunications providers, “but I think the state would prevail,” LeBlanc said. He said the FCC section on preemption is likely to be struck down in separate legal action brought by 21 states and the District of Columbia.
Others see the FCC’s viewpoint prevailing.
"I don’t think this gambit to evade the import of the FCC’s preemption authority is likely to work," said Randolph May, president of the Free State Foundation, a policy group that supported the FCC’s rules rollback. If litigation arises, "there is considerable precedent that the FCC’s preemption will prevail,” May said.
Not all state officials are for restoring the rules. Montana Public Service Commission member Travis Kavulla in a tweet said the governor didn’t have authority to regulate commerce through his order and it was tantamount to “pre-conditioning state procurement on corporate behavior that fits a given politician’s whims.”
The FCC has said other federal agencies can step in if companies commit abuses. Tina Pelkey, a spokeswoman for the FCC, declined to comment about state and local initiatives.
“It’s appropriate and helpful for the legislature to adopt at the state level the rules that the FCC rescinded," Smith said in a Jan. 22 blog post.
The right law could “create a long-term incentive for all stakeholders to move net neutrality in the United States back to the place where it can be governed effectively at the national level,” Smith said.