States Are Pushing Their Own Versions Of Net Neutrality Rules While Congress Stalls On Ending Bureaucratic Back-And-Forth

Eric Lieberman | Tech and Law Reporter

Several states are trying to pass their own respective versions of “net neutrality” rules after the Federal Communications Commission (FCC) in December of 2017 repealed a prior agency administration’s mandate to impose them unilaterally.

By trying to enact internet regulations, the various pending or embryonic legislative proposals would almost certainly create legal battles in local courts, and potentially higher tribunals. Many argue that since the internet — or more specifically broadband and wireless connectivity — crosses state lines, it is an interstate commerce issue.

The Competitive Enterprise Institute’s (CEI) Jessica Melugin wrote in February, “it’s difficult to imagine an industry more obviously interstate than the Internet.”

FCC Commissioner Michael O’Rielly, a Republican, agrees, telling The Daily Caller News Foundation that “when consumers visit a website or send an email, their data packets are generally not confined to a state, local, or other political boundary.”

“It’s fairly problematic. The FCC has ruled under Democrats and Republicans alike that broadband internet access is an inherently interstate offering,” a Washington D.C.-based attorney with telecommunications expertise told TheDCNF. “That’s the first pretty big roadblock under the commerce clause in the Constitution which regulates that area.”

The second hindrance for states, according to the lawyer, who is also a former FCC official, is that past FCC administration’s of all political balances have said that state efforts to adopt requirements conflicting with the federal regime would be preempted.

“The 2015 order under [then-FCC] Chairman Tom Wheeler said that, and the current order said that as well,” the legal expert continued. He asked to remain anonymous due to potential complications with his practice and clients. “Even some of the more cute approaches that some states have taken having to do with state procurement, like requirements, those are also generally inconsistent with the law.”

FCC Chairman Ajit Pai’s office declined to provide insight into the situation, but did point to the preemption section of the 2017 final order, which apparently gives them authority to override states in this respect.

Aside from potential legal issues with violating interstate commerce fluidity, O’Rielly believes states cannot technically create their own laws because it “is impossible to set rules in New York or Montana, that will not impact every other state.”

“A patchwork of state or local laws and/or restrictions will make it impossible for Internet Service Providers (ISPs) to follow and this will affect the consumer experience,” the commissioner continues.

Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation (EFF), an influential digital privacy rights group, says net neutrality supporters really had no choice.

In the absence of federal protections, the state, local governments are really the only avenue that remains,” Falcon told TheDCNF.

A considerable portion of Congress is currently attempting to pass its own legislation, specifically a Congressional Review Act (CRA) resolution that would undo the FCC’s most recent nullification, and effectively re-enact the 2015 Open Internet Order. Fifty senators — 47 Democrats, two Independents, and a lone Republican, Sen. Susan Collins of Maine — have so far endorsed the legislative move, which some, like Falcon, assert is a legitimate attempt at positive reform (or perhaps more aptly a preservation of post-2015 internet policy). Others argue it’s just a cunning and not-so-subtle political maneuver meant to stoke fervor before the 2018 midterms since it likely won’t pass all lawmaking steps.

When asked about the CRA and if it will conflict with the states’ push, Falcon said “these things move in tandem.”

“You really can’t control the organic nature of people, if you will. In terms of people, they expect results from their elected officials,” Falcon continued.

And many agree with that perception, just not with the states moving forward, but rather federal officials, so they can decisively end the bureaucratic back-and-forth that has been occurring as the FCC makeup changes concur with presidential administration changes.

Fred Royal, president of the Milwaukee Chapter of the NAACP — who also said that activists with fierce opposition to the undoing of internet regulations from 2015 “are backed by the wealthiest companies in Silicon Valley” — contends that federal lawmakers, not states, need to take the lead.

“Congress must begin the work to pass a net neutrality law that clearly spells out the rules of the road: no blocking, no throttling and no unfair discrimination,” Royal wrote in a USA Today op-ed. “These rules should apply to all players in the Internet economy, instead of selectively applying them to just broadband providers.”

The broadband industry itself, for the most part, says the same.

“Congress should come together and pass bipartisan legislation, which is the best way to enshrine the principles of net neutrality, encourage investment and ensure an open internet continues to work for everyone,” CTIA, the trade association representing many wireless communications corporations, said in a statement.

AT&T, the world’s largest telecommunications company, expressed the need for an “Internet Bill of Rights” earlier in the year, a decision applauded by CTIA President and CEO Meredith Atwell Baker.

Ferras Vinh of the Center for Democracy & Technology (CDT) supports strong net neutrality rules, but doesn’t think companies like Google, Facebook, and Netflix (known as edge providers, which are entities that produce content or provide a service through the internet) should be treated the same when it comes to restrictions — or what some call, consumer protections.

“While platforms can certainly facilitate communication online, ISPs serve as a gateway to the internet itself,” says Vinh. “With this in mind, it’s important to provide some form of protection or oversight to prevent ISPs from leveraging this position to harm consumers or competition between different platforms.” (Both CDT and EFF receive funding from Google in some capacity, and EFF and the tech giant seem to have a sort of “revolving door” relationship).

Not including edge providers when they have a lot of control over making the net neutral, in a somewhat different, but still important sense, isn’t considered a smart prospect for all left-leaning parties.

“Everyone understands that the internet is the new town square — our first stop for news, culture, work or access to the government. It must be protected and kept free and open for all,” wrote Ev Ehrlich, the former U.S. undersecretary of commerce in then-President Bill Clinton’s administration. “No one — whether it’s a search engine, social media platform or internet provider — should be allowed to line their pockets by blocking or censoring internet traffic or manipulating the flow of data to choke off competition.”

There have been other attempts at federal legislation besides the CRA, like Republican Tennessee Rep. Marsha Blackburn’s Open Internet Preservation Act, which so far seems to only have received limited, if not minimal, enthusiasm. Republican Sen. John Kennedy of Louisiana recently proposed his own bill rather than joining his one fellow party colleague, Collins, in support of the CRA — something that drew the ire of the aforementioned activists supporting the CRA, which is a complete reversion to 2015-2017 FCC policy.

GOP Sen. Ted Cruz of Texas is also considering, or already in the process of, creating his own legislation in an attempt to end the exhausting squabbling, a source with firsthand knowledge of prospective net neutrality bills told TheDCNF.

Nevertheless, as Falcon noted, states are pushing ahead so they can ensure that something gets done in this respect — forbidding and preventing unfair or restrictive actions — even if some believe it’s not practical or legal.

Practicality and legality, according to Vinh, depends on how the rules are applied.

“In many cases, it’s an unsettled legal question. The FCC included language in its repeal to preempt states and localities from implementing net neutrality protections,” says Vinh. “But states have chosen to pursue protections through different avenues. From a legal perspective, it appears likely that states can contract with ISPs to ensure that the service that they provide to the government complies with principles of net neutrality.”

The state of Washington is moving ahead regardless of ostensible operational or regulatory uncertainty. Earlier in March, Washington Governor Jay Inslee signed the nation’s first state law aimed at safeguarding or locally bringing back the recently nixed net neutrality rules.

“Washington state’s new net neutrality law underscores what we all know: that a substantial majority of the public is in favor of net neutrality protections,” Democratic FCC Commissioner Mignon Clyburn told TheDCNF. “I commend Gov. Inslee and the Washington state legislature for listening to their constituents and ensuring that the citizens of Washington continue to experience a free and open internet.”

Washington’s attorney general is also joining 20 other state chief law enforcement officers in challenging the FCC’s 2017 mandated repeal in court.

“We believe the FCC acted unlawfully when it gutted net neutrality, and I look forward to holding the FCC accountable to the rule of law,” said Washington A.G. Bob Ferguson.

The consensus on state’s legislative endeavors is, as many issues naturally are, divided, but not as clearly across party lines as it seems.

“The neutrality issue has a bipartisan pedigree going back to the landmark Telecommunications Act of 1996, which was championed by the Clinton administration, which I was a part of,” said Ehrlich. “But every law needs to evolve with the times … Congress has the power to pass a permanent, strong net neutrality law today — one that applies not just to the cable, telecom, mobile and satellite service providers, but the Big Tech monopoly platforms that dominate our lives and activities online.”

Ehrlich clarifies though that the CRA is not what he means by “strong” because “that will leave the issue in the hands of the FCC rather than a substantive law that will genuinely fix the problem.”

He continues:

On the far left, many seem happy to sacrifice net neutrality regulation as a stalking horse for nationalizing the internet and regulating it into submission. Like the animals who wouldn’t help the Little Red Hen, they’re happy to enjoy high-speed broadband (except when they complain about how much better it ought to be) but unwilling to work with the companies that have spent over a trillion dollars to build it.

His criticism wasn’t just directed at one distant end of the political spectrum, which seems to be dominating the more superficial aspects of the debate.

“Rather than a law establishing modest ground rules for cyberspace, the far right seems to prefer a Wild West internet that leaves the tech monopolies free to scrape valuable content, pick through user data, and decide what we can do and see online,” argues Ehrlich.

Overall, the issue of net neutrality, and what is the best way to ensure that tech companies don’t take advantage of their stature in the market, has been, and still is, extremely divisive (even vitriolic). States’ advances in creating their own separate laws, for example, are met with both heavy scrutiny and support.

What a bipartisan, all-encompassing legislative effort to clarify rules surrounding net neutrality looks like is not yet clear. But what is becoming more clear by the day is the desire for Congress to do something about the uncertainty.

If they don’t, 5G, or the next generation of wireless technology, and its comprehensive implementation in America could falter, according to Ryan Radia, regulatory counsel and research fellow at CEI. (RELATED: The Race To 5G Technology: How America Could Lose Out On The Next Biggest Thing)

“If states are able to Balkanize the internet through regulation,” says Radia, “the deployment of 5G will suffer.”

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