Mass. Net Neutrality Bill to Return with Democrats in Control

Massachusetts and Maryland became solidly blue after Democrats won governorships previously occupied by Republicans. Michigan and Minnesota also gained blue trifectas as control is shifting in legislative chambers. Democrats also flipped the Pennsylvania House and the Arizona governor’s mansion. Republicans still control most state legislatures, with West Virginia growing more strongly red, the National Conference of State Legislatures wrote the day after elections.

Massachusetts Democrats winning is “definitely” cause for optimism about passing net neutrality, said Eldridge, who introduced such bills in previous sessions (see 2110130060). The senator said he plans to refile his bill next year. The incoming governor, Attorney General Maura Healey (D), has “a reputation for taking on corporate power” and is “arguably the leading consumer advocate for the state.

Eldridge said the change could also help with legislation to make inmate calls free. A bill this year passed the legislature but stalled amid a faceoff between Democratic members and Gov. Charlie Baker (R) about a separate criminal justice issue (see 2208030056). The free-calls bill has a “much greater chance of passing under a Democratic governor,” the senator said. The political fight also stymied Eldridge’s facial surveillance proposal, which he also plans to bring back, he said.

The sponsor of a Maryland net neutrality bill doesn’t plan to try again despite Democrats’ gubernatorial win there. “I've dropped this issue for other priorities,” emailed Del. Kirill Reznik (D). “It could potentially be a really good time for a bill like this, but over the last year or two I've gotten involved with some other issues and don't have the bandwidth.” Maryland lacks “a strong advocacy movement … to get this done,” he added.

“We should expect continued focus on internet regulations in the next legislative terms,” said Schruers. CCIA released a report last week on the state content moderation landscape. “States with one-party control of the legislative chambers and the governorship are likelier to impose regulations, and not necessarily consistent regulations, on digital services to achieve any number of objectives,” said the association head. Net neutrality is one “likely subject” for states after the election results, said Schruers, noting the “issue remains perpetually unresolved at the federal level.” Democratic, one-party control increases the likelihood of such state bills crossing the finish line, he said.

The CCIA president predicted about a half dozen states will pursue some form of internet regulation, including some midwestern states and “return appearances” in California, Florida, New York and Texas, which all signed laws this year. Litigation on Texas and Florida social media laws should give state lawmakers “pause,” but some might look at Texas’s win in the 5th U.S. Circuit Court of Appeals as charting a path forward, Schruers said. Possible Supreme Court resolution of the cases probably won’t happen before states complete or are at least well into their legislative sessions, he said. “A prudent state legislature would wait and see, but I don’t think all are necessarily going to be prudent.”

Blue states won’t base social media bills on GOP-controlled Florida and Texas laws, said Schruers: But they could seek to increase disclosure and transparency obligations, require “a stronger government hand in the design and testing of algorithms” and increase data protection compliance requirements. Bills passed this year in California and New York might be models, he said.

“‘Broadband is a utility’ is a slogan looking for a regulatory agenda, and that slogan will become more prevalent in the states that look at California as being a model for attempted state regulation of broadband,” emailed Wilkinson Barker attorney Ray Gifford, former Colorado Public Utilities Commission chair. “This ‘regulate it as a utility’ movement will gain more momentum from the billions of federal dollars sluicing through state broadband offices in coming years.” He expects some states will argue, “if it’s public money, then why shouldn’t it be regulated more stringently?”

With Healy’s win in Massachusetts, chances increased for making prison calls free in Massachusetts, emailed Progressive Mass Policy Director Jonathan Cohn. “The biggest obstacle this past session was that we had a conservative Republican governor and a Legislature that wasn't willing to come back into session to override him.” Healey hasn't weighed in, he said, “but I would expect she would be willing to sign what the Legislature passes.”