WASHINGTON — Blue states may have found a new way to get around the Federal Communications Commission’s network neutrality rule rollback, but it’s one that will likely lead them straight to court.
Attorneys general from 22 states have signaled they are joining the legal effort to challenge the rules, but Democratic Governors Andrew Cuomo of New York and Steve Bullock of Montana have taken a page from President Donald Trump and pressed the issue via executive orders.
The orders, both issued last week, mandate that suppliers of government broadband services must not block or throttle web traffic or engage in paid prioritization, essentially restoring the network neutrality rules the FCC rolled back last month.
They made no secret of why they were doing it. “There has been a lot of talk around the country about how to respond to the recent decision by the Federal Communications Commission to repeal net neutrality rules, which keep the internet free and open. It’s time to actually do something about it,” said Bullock. The New York order says the FCC has done away with open internet protections to serve corporate interests and not those of New Yorkers. Bullock, who went first, had called on fellow governors to follow his lead.
The mandate only applies to broadband services with state and local government contracts, but the Helena, Mont., Independent Record has reported that Montana has about $50 million in contracts with providers that include Charter, CenturyLink, AT&T and Charter Communications.
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“The future of net neutrality will likely be decided by states rather than the federal government,” said Travis LeBlanc, FCC Enforcement Bureau chief under Democratic chairman Tom Wheeler and now a partner at Boies Schiller Flexner, who told Multichannel News he had advised Bullock on the order. “States across the country are stepping up to the plate to ensure that consumers have free and open access to the internet. ”
Internt service providers were clearly keeping a close eye out last week. “ISPs are committed to preserving an open internet but state-by-state actions aren’t the answer,” said NCTA – The Internet & Television Association. “We support a bipartisan legislative solution that both protects consumers and fosters broadband deployment in rural areas across the entire country.”
One ISP source pointed out that the FCC has a long history of state pre-emption. But LeBlanc clearly sees a difference between legislation and the governor’s mandate: “I don’t think the FCC’s 2017 order would pre-empt the executive order,” he said.
CenturyLink senior vice president of public policy and government relations John Jones said his company supports access the way the FCC has set it up, which is to allow for a variety of business models and let the Federal Trade Commission and Justice Department enforce fairness and competition.
As for layering state internet rules and regulations on top of that, “From a policy standpoint, internet traffic is inherently interstate in nature and thus best handled at the federal level,” Jones said. “CenturyLink supports the ability of all of its customers to access lawful content through the device of their choice and with a consistent and predictable set of principles outlined by the FCC. State regulation of something as critical as the global internet ecosystem is not the right approach to achieve that goal.”
The FCC had no comment at press time on how the pre-emption provision in the Restoring Internet Freedom order affected Montana’s new order.
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