ISPs Sue Vermont Over Net Neutrality Moves

Cable and telecom ISPs have teamed up to sue Vermont over two interrelated attempts to regulate internet access and restore rules rolled back by the FCC's Open Internet Order.

The American Cable Association, NCTA-The Internet & Television Association, USTelecom and CTIA filed suit Thursday in a federal district court in Vermont against a law and executive order they argue are preempted by the FCC's order and therefore unconstitutional.

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"As the FCC has repeatedly recognized, internet traffic flows freely between states, making it difficult or impossible for a provider to distinguish traffic moving within Vermont from traffic that crosses state borders. Both the Supremacy Clause and the dormant Commerce Clause protect broadband internet service providers (“ISPs”) from a patchwork of inconsistent regulations that are impossible for them to comply with as a practical matter. The Court should declare that the Executive Order and S. 289 are preempted and unconstitutional, and should permanently enjoin the Defendants from enforcing or giving effect to them."

The law and order combine to impose the old prohibitions on blocking, throttling and paid prioritization on any service provider's enterprise (business) broadband service, including to large businesses and the state, including to the courts, legislature or executive branch.

"Vermont’s attempts to revive and, indeed, expand a repealed regulatory regime are plainly preempted by federal law," the ISPs told the court. They also used the economic argument for the FCC rule rollback, something USTelecom was trumpeting this week in a new research report.

"Capital investment in broadband actually declined when the Title II Order went into effect, but increased dramatically after the FCC announced its intent to repeal that order," the ISPs told the court this week. "By lifting the burdens imposed by Title II regulation, the Restoring Internet Freedom Order opens the way for providers to freely invest in crucial broadband infrastructure and experiment with new business models."

The FCC and ISPs got a legal boost to their arguments for preemption last month when the U.S. Court of Appeals for the Eighth Circuit affirmed that state efforts to regulate information services are preempted by federal law.

Arguably the primary thing the Restoring Internet Freedom order did was to reclassify ISPs from a Title II common carrier telecommunications service to a Title I information service.

The Vermont suit follows a similar suit filed by the Department of Justice two weeks ago against California's effort to restore the net neutrality rules. The same parties that sued Vermont joined in that DOJ suit.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.