Washington State Laughs At Federal Attack On State Net Neutrality Laws

Legal Issues

from the good-luck-with-that dept

In the wake of the FCC’s net neutrality repeal, nearly half of the states in the union are now in the process of passing new net neutrality rules. Some states are pushing for legislation that mirrors the discarded FCC rules, while others (including Montana) have signed executive orders banning states from doing business with ISPs that engage in anti-competitive net neutrality violations.

Of course incumbent ISPs saw this coming, which is why giant ISPs like Verizon and Comcast successfully lobbied the FCC to include language in its repeal that tries to preempt state authority over ISPs entirely. But this effort to ban states from protecting consumers (not just from net neutrality violations) rests on untested legal ground, which is why some ISPs are also pushing for fake net neutrality laws they hope will preempt these state efforts.

So far, some states aren’t taking the FCC’s threats very seriously, despite California being sued by both major ISPs and the Department of Justice. Washington State Governor Jay Inslee this week had some choice words for the Ajit Pai FCC:

?Bring it on. If the president sues us, we?ll be ready.”

That sentiment was mirrored by Washington State Senator Rep. Drew Hansen at a panel in Seattle on Wednesday:

“At the state level, we?re still, to some extent, a functioning democracy and if you get a broad bipartisan coalition around standing up for a free and open internet, as it turns out, you can actually get that written into state law,? Hansen said.”

While the worry is that the DOJ and ISP lawsuit against California will set precedent that ruins other state efforts on this front, numerous lawyers I’ve been speaking to over the last few weeks say the heart of these lawsuits rests on some very unsound legal footing. In short, when the FCC gave up its authority to seriously regulate broadband providers, it also gave up its authority to tell states what to do. As such, the preemption language ISPs convinced the FCC to embed in its “Restoring Internet Freedom” proposal isn’t likely worth the paper it was printed on:

“An agency that has no power to regulate has no power to preempt the states, according to case law,? Stanford Law professor Barbara van Schewick said.

?When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers,? van Schewick said. ?That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC?s repeal order removed its authority to adopt such protections.”

At best, lawyers believe the DOJ’s lawsuit against California will only delay the state’s law until the courts settle the looming, separate lawsuit against the FCC by 21 state AGs. So even if the broadband industry and FCC win that case, the attempt at state preemption isn’t likely to stand. Even if it does, the broadband industry also has to find a way to prevent any future Congress and FCC from just passing tough rules again, which is why the industry is having their most loyal political allies (like Tennessee’s Marsha Blackburn) push bogus net neutrality laws they write with a specific aim at crushing tougher state or federal efforts.

But even in the deepest swamps of DC a majority of politicians aren’t dumb enough to sign off on such incredibly unpopular legislation, a sentiment that’s only likely to grow after the midterms. Meanwhile, as ISPs (and the politicians paid to love them) continue to whine about the state effort to craft “discordant and fractured” state level laws, remember that none of this would be happening if those same politicians hadn’t dismantled popular, modest, federal level net neutrality (and privacy) rules at the behest of giant, widely-despised telecom monopolies.

Filed Under: fcc, net neutrality, washington