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Net neutrality advocates look to states after FCC repeal

Net neutrality advocates look to states after FCC repeal
© Greg Nash

State legislatures are waging their own fight to restore net neutrality rules after the Federal Communications Commission (FCC) moved to scrap them last month.

Lawmakers in at least six state governments have introduced legislation to preserve the rules, and legislators in other states are in the process of considering their own net neutrality bills.

The push comes after the FCC voted in December in favor of Chairman Ajit Pai’s plan to roll back the regulations, which prevented internet service providers like AT&T and Verizon from slowing down certain content or requiring websites to pay for faster speeds. 

As of Friday, California, Washington, New York, Rhode Island, Nebraska and Massachusetts have all introduced net neutrality. North Carolina and Illinois are mulling similar legislation.

By enacting such legislation, the states hope to preserve the Obama-era net neutrality rules.

“For Californians, the internet has always been an open, free, egalitarian space, accessible to all individuals,” said California state senator Kevin de León (D), who introduced his own net neutrality legislation this week. “And we strongly believe that, since we are the epicenter of innovation and creativity in the area of technology.”

Along with de León, who has launched a Democratic primary challenge to Sen. Dianne FeinsteinDianne Emiel FeinsteinHow Republicans are likely to handle Democrat-led investigations  Feinstein: Acting AG must pledge to Senate he won't interfere with Mueller Kavanaugh report shows why the presumption of innocence is key MORE (Calif.), other state lawmakers across the country pursuing similar legislation in the hopes that their regulations would force internet service providers to apply net neutrality rules nationwide.

Lawmakers in these states say the bills have been inspired by frustration at an FCC that they feel has ignored the public, which overwhelmingly supports net neutrality.

New York Assemblywoman Patricia Fahy (D) told The Hill that part of the motivation behind her legislation stems from the bipartisan support among voters for net neutrality. She cited a poll released before the FCC’s vote on Dec. 14 which showed that 83 percent of the public was opposed to Pai’s move to end net neutrality regulations.

Despite the groundswell of support for net neutrality in state legislatures, though, the legislation still faces obstacles.

Pai’s order rolling back net neutrality includes language that specifically preempts any attempts that states could make to create their own net neutrality regulations.

"A state can only regulate communication within its state," said Roslyn Layton, a visiting scholar at the conservative American Enterprise Institute think tank. 

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Layton said that, because the internet extends beyond an individual state, states don't have the power to regulate it in the way that Congress or the FCC does. 

But some lawyers are skeptical of the legal basis for Pai’s preemption of state laws.

“The FCC’s attempt to preempt state rules appears questionable,” said Pantelis Michalopoulos, a telecommunications lawyer at the firm Steptoe and Johnson.

Michalopoulos noted that while the legality of the situation is not completely clear yet, federal agencies generally have to offer some type of regulation to preempt state regulation. In this case, there are almost no rules, because the FCC got rid of them.

“Further analysis is necessary, but generally something needs to be preempted by something else. Here you have virtually no federal rules to preempt state rules,” he said.

Some state lawmakers are trying to dodge legal disputes completely by introducing “side door” legislation that doesn’t regulate tech firms directly, but would prevent telecommunications companies who violate net neutrality principles from getting contracts in the state.

“We knew that the FCC was making a big issue about federal preemption,” Fahy, the New York assemblywoman, said. “I had said then when we were trying to figure this out maybe the one way to thread the needle is the power of the purse.”

Fahy’s legislation aims to do just that by taking advantage of a provision within the FCC’s order that forces technology firms to publicly disclose if they’re violating net neutrality provisions that were previously banned by the FCC’s rules. If companies concede to violating those principles, then New York could yank state contracts under the proposed legislation

Fahy is working with lawmakers in other states legislatures to compound the potential power of her bill. Rhode Island introduced a similar bill on Friday, and Fahy said legislators she’s spoken to in North Carolina are mulling similar legislation.

Her strategy has checked out so far with some lawyers.

Louis DiPalma, a Democratic state senator in Rhode Island who introduced equivalent legislation on Friday, said that Rhode Island state house counsels he’s spoken with are optimistic about the legislation’s legal foundations.

Michalopoulos also said even if the FCC’s preemption rule is upheld, it's likely it wouldn’t affect Fahy and company’s legislation.

Even with the efforts from state, though, people on both sides of the net neutrality debate agree that Congress has the final say in deciding the fate of how the internet is or isn’t regulated.

Gaurav Laroia, a policy counsel at Free Press, a pro-net neutrality advocacy group, said that the push from states has been helpful in building support in Congress.

“I think it’s rare to see this much spontaneous energy towards a telecommunications issue,” he said. "It just shows lawmakers how important people think it is."