States Seek Their Own Net Neutrality Rules Amid Pre-Emption Threat
State officials and lawmakers said they will test FCC pre-emption and make net-neutrality rules for residents, after commissioners’ 3-2 vote to rescind national protections. More Democratic state attorneys general said they will sue, after Thursday’s announcement of a multistate lawsuit by Democratic New York AG Eric Schneiderman (see 1712140044). The National Association of State Utility Consumer Advocates likely “will be joining one of the many actions that will be filed,” NASUCA President Elin Katz of Connecticut told us Friday.
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Commissioner Mike O’Rielly wants no state and local broadband actions, said his Thursday statement. “Any laws or regulations that conflict with or undermine federal broadband policies are pre-empted.” O’Rielly would have gone even further on pre-emption, he added. “The order makes clear that any requirements akin to common carrier regulation are barred. At my request, the order also specifies that states may not adopt their own transparency requirements, whether labeled as such or under the guise of ‘consumer protection.’” The FCC declined comment Friday.
"Exactly where the line is as to what is preempted and what is not is at best murky and unclear, and is very much developing," and “that’s where we need to be thoughtful” about legislative options, Katz said. The Connecticut Consumer Counsel joined a news release Friday with state Sen. Beth Bye (D) seeking state action. “There are actions we can take that don’t involve preemption questions, including leveraging collective economic power,” said the NASUCA president and Connecticut Consumer Counsel. She urged state elected officials to consider steps proposed by Washington Gov. Jay Inslee (D), which earlier got kudos from Pennsylvania Gov. Tom Wolf (D). “There are also direct challenges to the FCC’s order on the grounds that it is arbitrary and capricious,” Katz said. “NASUCA will almost definitely get involved.”
A California state senator planning to introduce net neutrality legislation is skeptical the FCC can pre-empt him. Sen. Scott Wiener (D) doesn’t “believe the FCC has the power to pre-empt states from taking action and there are strong arguments to be made that states have the right to protect internet access,” a spokesman said Friday. Wiener plans to introduce his bill in January, said a Thursday news release. “If the FCC is going to destroy Net Neutrality and create a system that favors certain web sites just because they can pay more money, California must step in and ensure open internet access [for] Californians,” he said. The Electronic Frontier Foundation, American Civil Liberties Union and California Public Interest Group supported the expected state bill.
"Federal preemption is being used to keep the states from protecting their own consumers from Washington’s mad dash off the deregulatory cliff," California Assemblymember Ed Chau (D) said in a Friday statement. Chau chairs a privacy and consumer protection committee and sponsored ISP privacy rules like the FCC rules repealed by Congress. "The FCC’s approach is not so much a ‘light touch’ as it is ‘turning a blind eye,’" he said.
A dozen Democratic state AGs say they will challenge. Vermont Attorney General T.J. Donovan (D) will take legal action, he tweeted Friday: “This is about fairness.” Others “gearing up to push back” are AGs from Delaware, Illinois, Iowa, Kentucky, Maryland, Massachusetts, New York, Oregon, Pennsylvania, Rhode Island, Washington state and Washington, D.C., tweeted the Democratic Attorneys General Association. New York’s Schneiderman is leading the suit.
States will soon test FCC pre-emption language in the order, Electric Power Board of Chattanooga General Counsel David DiBiase told customers Friday on a Facebook Live Q&A. He didn’t advocate rules in Tennessee, where EPB runs Chattanooga’s municipal broadband network. EPB is “committed to uphold net neutrality regardless of what the FCC rules say,” EPB CEO David Wade said. The 2015 rules didn’t change EPB’s behavior and neither will removal, he said.
Other net neutrality news Friday: On Capitol Hill and appeal prospects 1712150049 and on antitrust 1712150045.