Calif. and Wash. Senators Say State Laws ‘Complement’ Possible FCC Net Neutrality Rules

"We remain concerned that a patchwork of state open Internet requirements may be burdensome for ISPs, particularly small ISPs, thus hindering the broadband market, and at the same time, fail to ensure that all consumers are protected from conduct harmful to Internet openness," said the FCC's open internet NPRM, which was released Thursday after state legislators commented for this story (see 2309280084). "We believe that reclassification will put our authority to preempt any inconsistent state laws on substantially stronger legal footing, thereby enabling the Commission to create a uniform set of open Internet standards that will apply nationwide."

Six states enacted net neutrality laws after the previous FCC under Republican Chairman Ajit Pai reversed federal laws: California, Colorado, Maine, Oregon, Vermont and Washington. Some set rules like the FCC’s 2015 order while others limited state contracts or state subsidies to ISPs that follow net neutrality principles. Montana, New York, New Jersey, Hawaii, Rhode Island and Vermont governors signed executive orders. Industry withdrew a lawsuit against California after losing at the 9th U.S. Circuit Court of Appeals (see 2205050041), while separate ISP litigation against Vermont’s law is pending in the U.S. District Court of Vermont (see 2307260024).

“Federal protections are very important,” said California state Sen. Scott Wiener (D), applauding possible FCC action. But the California net neutrality law, authored by Wiener in response to the last FCC’s repeal, remains critical because a future Republican president “could attempt, once again, to eliminate federal protections,” he said. “This is a situation where both federal and state protections complement each other and serve a valuable purpose.”

Likewise, Washington state would likely keep its law, even with FCC rules, as a safeguard for consumers in case of a possible “future administration reversing course,” said state Sen. Drew Hansen (D) in an interview. Hansen wrote his state’s 2018 net neutrality law, which was the first in the country: “There shouldn’t be a conflict between our rules and the federal rules.” Hansen said he’s “delighted” the FCC will seek to restore net neutrality rules. Washington state “always preferred that net neutrality be the law nationwide, but when the Trump administration repealed those rules, we knew that we needed to step in … with our own consumer protection authority,” he said.

Congress should pass a national policy based on Washington state’s law, said Hansen, but it seems “difficult for Congress to enact large-scale, complex policy these days.” The state hasn’t heard any complaints from consumers about net neutrality abuses since enacting its law, which tells Hansen “we moved in the right direction,” said the Democrat. “At the same time, we haven’t seen any organized effort to repeal our net neutrality law, which suggests this is a workable standard for business.”

Washington Gov. Jay Inslee is “glad” the FCC plans to restore net neutrality rules, said the Democrat’s spokesperson: “We know the power an open internet gives consumers, students, small businesses and the free flow of information.”

State consumer advocates welcome the FCC chairwoman’s announcement and look forward to participating, emailed David Springe, executive director-National Association of State Utility Consumer Advocates. NASUCA has long supported treating broadband as a Title II telecom service, he said. “Affordable and universal access to broadband is necessary for consumers and businesses to thrive.” NARUC declined to comment.

Reclassifying broadband might give the FCC power to override state net neutrality laws, some legal experts said. The 1996 Telecom Act and its structure “generally have empowered the FCC … to preempt the states through its classification authority,” Wilkinson Barker attorney Ray Gifford emailed. “The argument isn’t that Congress has directly delegated preemption authority to the FCC, but that the authority to classify services has downstream effects that result in preemption.”

“If broadband were a Title II service, the FCC would have authority to preempt state law,” said Public Knowledge Senior Vice President Harold Feld. By law, the FCC exclusively regulates interstate traffic and states solely regulate intrastate; for mixed traffic, “states maintain jurisdiction unless the FCC preempts them,” said Feld. “A state seeking to protect its own laws would need to show that the regulation in question is purely intrastate, which has historically been very difficult to do.” Feld said “one of the great ironies of Pai's reclassifying broadband as Title I” was that “he removed FCC authority to preempt state law.”

The FCC could allow some state laws, said Barbara van Schewick, director of Stanford Law School’s Center for Internet and Society. “In its 2010 and 2015 net neutrality orders, the FCC said it would review state laws case by case and preempt them if they conflicted with the federal orders,” she emailed. That was to stop states from undermining net neutrality with weaker laws, but “those orders left open the possibility for states to enact stronger protections,” said the professor who was involved in developing California’s net neutrality law. The FCC could do the same in a new order, she said: “This is a pretty common model for balancing state and federal regulations.”