Monday, March 12, 2018 [Tweets] [Favorites]

Can U.S. States Hang on to Net Neutrality?

Geoff Duncan:

States aren’t pinning all their hopes on successfully suing the FCC: several are working to enact their own net neutrality laws, and this week Washington became the first state to put such a law in the books.

[…]

Going for the purse strings is a nice idea — and very likely ducks under the FCC’s preemption authority — but broadband operators are already used to dealing with innumerable state and local utility commissions. It’s the sort of thing that can be sidestepped with shell companies and finagling — and in markets like New York, Texas, and California, there’s more than enough money at stake for broadband operators to do just that. In smaller markets, broadband operators may simply choose not to comply, effectively holding improved Internet service hostage until regulators relent. That too would hurt users — and, of course, state services like schools and educational institutions.

[…]

Notice who isn’t participating in this debate? Major Internet companies like Google, Facebook, Amazon, and Apple. All these firms took public stances in favor of net neutrality — because it helps their businesses — but have been remarkably silent on state efforts to preserve some semblance of net neutrality.

Previously: Network Neutrality, Ajit Pai, and Title II.

Update (2018-03-15): Jon Brodkin:

Some states are trying to evade the federal preemption with indirect measures that apply only to ISPs that accept state contracts. No one knows for sure how a court would rule on state bills that regulate net neutrality directly. Even legal analysts who support net neutrality laws disagree on whether such laws would survive lawsuits filed by ISPs.

Van Schewick argues that the FCC’s preemption claims are invalid.

“While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid,” she wrote. “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.”

Via Karl Bode:

In other words, when the FCC rushed to neuter its authority over ISPs it also neutered its authority to stop states from filling the void and protecting consumers.

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