West Coast States Close to Passing Net Neutrality Laws Countering FCC
Washington could be the first state to pass net neutrality legislation restoring protections rescinded by the FCC in its December order. The Washington state Senate this week is likely to pass a net neutrality bill (HB-2282) that was overwhelmingly approved by the House and has support from Gov. Jay Inslee (D), said sponsor state Rep. Drew Hansen (D) in a Monday interview. Other West Coast states may be close behind, with the Oregon House passing its own net neutrality bill Monday and the California Senate passing a bill earlier this month. Industry groups said they would prefer congressional action. Last week’s publishing of the FCC order in the Federal Register precipitated lawsuits by state attorneys general and several others (see 1802230047).
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The Washington state bill must pass by Friday or it’s dead, under the legislature’s rules, Hansen said: “No turbulence noted so far.” The bill would go next to Inslee for gubernatorial signature. The governor must review the bill before deciding, but “feels strongly about net neutrality,” an Inslee spokeswoman said. He likely will want to sign the bill and a separate executive order on state procurement at the same time, she said. The FCC declined comment.
The Oregon House voted 40-17 to pass a bill that would require the state to contract only with ISPs that follow net neutrality principles. Six Republicans voted for HB-4155, but most in the party opposed the bill. On the House floor, GOP Leader Mike McLane warned it may have “unintended consequences” and could be pre-empted by the FCC. State Rep. Carl Wilson (R) worries the bill will “lead to more government control of the internet,” he said. But House Majority Leader Jennifer Williamson (D) said her bill avoids pre-emption questions because states may govern their own procurement. Some warned such a bill could undermine FirstNet prioritization of public safety traffic, but her bill would exempt public safety, Williamson said.
It’s up to the California Assembly how quickly they want to take up the Senate-passed SB-460, a spokesman for sponsor and Senate Leader Kevin de León (D) emailed Monday. “Looks like it will probably be a few months before anything happens.” Senate bills sent to the Assembly in the second year of the two-year session are usually heard by committees in late April or early May, said a spokesman for Assembly Speaker Anthony Rendon (D).
Net neutrality is highly partisan in the nation’s capital and many states, but a Democrat and a Republican collaborated in Washington state. “We have strong bipartisan support in Washington state for a free and open internet,” unlike at the federal level, Hansen said. After he worked closely with GOP Rep. Norma Smith, the state House voted 93-5 on Feb. 9 to pass the bill. Hansen said he didn’t compromise. While he and Smith made some tweaks at the telecom industry’s request, “the core of the bill ... is still intact,” he said. ISPs voiced “discomfort” with the bill and say they prefer national to state-by-state rules, but they also support net neutrality principles, Hansen said.
It’s not surprising Washington state might be first to pass a net neutrality bill, said Free State Foundation President Randolph May: “Think ‘Left Coast’ and think about some of the huge edge provider net neutrality supporters like Amazon and Microsoft that have such large presences there.” Amazon's and Microsoft's presence probably is part of it, but net neutrality wasn't always a partisan issue, said Harold Feld, Public Knowledge senior vice president. "It doesn't surprise me that the further away you get from Washington, D.C., the more this becomes a bipartisan issue." Bipartisan support in Washington state is due to “misinformation” about the FCC’s 2015 order, said American Legislative Exchange Council Communications and Technology Task Force Director Jonathon Hauenschild.
“The state net neutrality bills are legal Hail Marys,” said Mercatus Center Technology Policy Research Fellow Brent Skorup. “I’m fairly certain the Washington state bill will not survive if enacted.” The FCC has a “strong case” for pre-empting states like Washington that try to impose their own net-neutrality rules, but the agency likely won’t challenge them until federal rules take effect in late April, May said. By then, there may be multiple state actions that are inconsistent with the FCC order and the agency may opt to examine them together, he said. Feld disagreed the FCC has necessary authority from Congress to pre-empt states.
Congress rather than 50 states should address net neutrality, USTelecom, NCTA and CTIA officials said separately. “ISPs are committed to preserving an open internet but state by state actions aren’t the answer,” the NCTA spokeswoman said.