Middle Schoolers Cheer As Oregon Passes A Net Neutrality Law

from the the-people-are-kind-of-pissed dept

More than half of all states are now pushing their own net neutrality rules in the wake of the federal repeal. Some states are pushing for new net neutrality laws that closely mirror the discarded FCC rules, while others are signing executive orders that prohibit states from doing business with ISPs that behave anti-competitively. And while these discordant laws may make doing business from state to state harder on incumbent ISPs, that's probably something they should have thought about before dismantling arguably modest (and hugely popular) federal protections.

This week Oregon became the latest state to sign net neutrality protections into law with what was largely bipartisan support. House Bill 4155 largely mirrors the FCC ban on things like paid-prioritization and anti-competitive blocking and throttling, though (also like the discarded FCC rules) it wouldn't address usage caps and overage fees or zero rating, one of the key areas where anti-competitive behavior often takes root. The bill also carves out numerous exemptions for legitimate instances of prioritization (medical care, prioritized VoIP services).

The bill also mandates that state and local governments contract only with companies that abide by the principles of net neutrality. Again highlighting the popularity of these efforts, three middle school kids testified before the State Senate in support of the new law:

"Leading up to the bill's passage, three students from Mt. Tabor Middle School testified in support of net neutrality in Salem. "It isn't common that kids get very involved in this, and it shows just how important this issue is to us," Luca Larsen-Utsumi, who spoke in front of the House Committee on Rules said."

While these state laws are an organic reaction to the federal government selling out consumers and the health of the internet, they'll only be as good as the people willing to actually enforce them. Many of the laws carve out exceptions for "reasonable network management," language ISP lobbyists have routinely and successfully abused to effectively allow pretty much anything -- at least in states where lawmakers and regulator ethics are malleable via campaign contribution (read: most of them). In other words, passing these rules is only part of the equation.

Granted this is the same state that just got done giving Comcast an inadvertent $15 million annual tax break for doing absolutely nothing, so you have to hope they crossed their t's and dotted their i's on this particular legislation, and remain alert to post-passage lobbying efforts to subvert it.

States like Oregon also have to contend with likely legal challenges by incumbent ISPs and their BFFs at the FCC.

After it was lobbied to do so by Verizon and Comcast, the FCC included language in its net neutrality repeal that attempts to "pre-empt" (read: ban) states from protecting consumers on issues of privacy and net neutrality. But this authority is untested, which could result in some significant and interesting legal battles in the months to come. Again though: this expensive, confusing battle could all have been avoided if the FCC had actually bothered to listen to data, the experts, and the will of the public and kept the FCC rules intact.

Filed Under: ajit pai, fcc, net neutrality, oregon, states rights

Washington State Laughs In The Face Of FCC Attempts To Ban States From Protecting Net Neutrality

from the unicorns-at-the-fcc dept

In the wake of the FCC's net neutrality repeal, nearly half 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 both 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, states aren't taking the FCC's threats very seriously.

Washington State for example became the first state in the union this week to pass net neutrality legislation (though Oregon is neck and neck). Washington's new law largely mirrors the discarded FCC rules by prohibiting the anti-competitive throttling and blocking of competitors, as well as "paid prioritization" deals that prevent ISPs from letting deep-pocketed content companies buy an unfair advantage over smaller companies and startups. Also like the FCC's rules, it carves out notable exemptions for "reasonable network management" -- as well as for the prioritization of legitimate services that may need it (medical, VoIP services).

Amusingly, the bill's sponsor doesn't appear particularly flummoxed by FCC restrictions on what states can and can't do:

"Just because the FCC claims it has the power to preempt state laws doesn’t mean that it actually does,” says (Drew) Hansen. “I can claim that I have the power to manifest unicorns on the Washington State Capitol lawn. But if you look outside right now, there are no unicorns."

ISPs have already started complaining that complying with an ocean of discordant state-level rules is hard on them, though that's something they might have wanted to give a little more thought to before lobbying to dismantle what were arguably (by international standards) pretty modest federal-level rules.

Note that's not to say state-level protections will be perfect. Many politicians are just trying to score political brownie points, and in many instances the rules will only be as good as those willing to actually enforce them. Several of them also are a little shaky on how they define "reasonable" network management, a term ISP lobbyists have a long, proud history of trying to redefine to include pretty much anything. Still, these are all problems that could easily been avoided by actually listening to the public, the experts, and the data and leaving the federal rules alone.

Filed Under: fcc, net neutrality, states rights, unicorns, washington

More Than Half Of U.S. States Now Pushing Their Own Net Neutrality Rules

from the things-gonna-get-ugly dept

Large ISP lobbyists, the FCC and agency head Ajit Pai are going to be rather busy for the foreseeable future. In the wake of the agency's extremely unpopular net neutrality repeal, consumer groups note that 26 states (27 including a new effort in Kansas) have now taken action to protect net neutrality themselves -- with more efforts on the way. The efforts range from attempts to pass state-level net neutrality rules banning anti-competitive behavior, to executive orders modifying state procurement rules to prohibit ISPs that violate net neutrality from getting state money or securing state contracts.

Last week, Vermont became the fifth state to embrace the executive order route, approving new rules (pdf) that prohibit ISPs from securing state contracts if they engage in anti-competitive throttling, website blocking, or paid prioritization. In all instances, both the proposed state laws and executive orders provide ample leeway for the prioritization of essential services (like medical equipment) while allowing ISPs to engage in "reasonable network management."

That said, ISP lobbyists tend to be pretty good at convincing lawmakers to water down what "reasonable" means before or after the fact, something we saw with both the 2010 and the 2015 FCC rules. Net neutrality rules are also only as good as the willingness to actually enforce them, which historically hasn't been great. In other words, while these are well-intentioned efforts by many state leaders, it's going to be important to hold state leaders' feet to the fire on this issue, especially given the often comical influence ISPs have on state regulators and politicians.

Forseeing this state-level action, ISPs like Verizon and Comcast successfully lobbied the FCC to include language in its repeal banning states from enforcing net neutrality or protecting broadband subscriber privacy (in the wake of their other success killing privacy rules last year).

But the FCC's authority on this front remains uncertain. Many of the state leaders, like Montana Governor Steve Bullock, believe the executive orders fall outside of FCC jurisdiction anyway:

"Through the order, the State of Montana acts as a consumer—not a regulator. Because there's no mandate, and no new regulations, there's certainly no federal preemption. Companies that don't like Montana's proposed contract terms don't have to do business with the State."

We've noted a few times the irony involved in Ajit Pai's position on this subject. Pai is one of several ISP allies who have whined incessantly about the need to protect "state rights" when states are passing ISP-written protection laws intended to hamstring competition among telecom operators. Here you've got states actually trying to do right by consumers and you'll notice this interest in states rights magically disappears like morning dew in the mid-day heat.

Keep in mind, in addition to doing battle with 27 states, FCC boss Ajit Pai is also facing two different GAO inquiries into his odd behavior during the repeal, as well as a new FCC Inspector General investigation into whether Pai's too cozy with the companies he's supposed to be regulating. He's also facing a lawsuit by 22 State Attorneys General accusing him of ignoring the public interest in the repeal. That's in addition to the numerous lawsuits being filed by consumer advocates, activists, and the competing companies who'll be harmed by this blatant handout to Comcast and Verizon.

And while the rotating crop of dollar-per-holler "consultants," think tankers, lobbyists and PR folks are already deriding the "chaos" and "uncertainty" created by states crafting their own rules, that's again something these ISPs should have thought more deeply about before attacking consistent and arguably modest (by international standards) federal protections. They built this chaos, and shouldn't be allowed to tap dance around that fact.

Filed Under: ajit pai, fcc, net neutrality, states, states rights

California's Net Neutrality Law Takes Another Step Forward

from the welcome-to-the-backlash dept

In the wake of the FCC's repeal of federal net neutrality rules, countless states have rushed to create their own protections. Numerous states from Rhode Island to Washington State are considering new net neutrality legislation, while other states (like Wyoming and New York) are modifying state procurement policies to block net neutrality violating ISPs from securing state contracts. These states are proceeding with these efforts despite an FCC attempt to "pre-empt" (read: ban) states from stepping in and protecting consumers, something directly lobbied for by both Verizon and Comcast.

One of two California net neutrality laws, SB-460, passed 21-12 by the state Senate, and will now head to the state Assembly:

"Both bills are meant to give California officials rules to force Internet service companies to adhere to the principles of net neutrality to continue doing business within the state. Those principles broadly guarantee the makers of websites and apps equal access to Internet consumers without excess charges or special fees for faster service. The FCC threw out national net neutrality rules enacted in 2015 by the Obama administration, saying they were unnecessary."

Like other state efforts, the California bill mirrors the discarded FCC rules by prohibiting ISPs from engaging in paid prioritization and other anti-competitive behaviors while crafting sizable loopholes for the prioritization of medical services and "reasonable network management" practices. ISPs who violate these restrictions would be subject to financial punishment under California's existing consumer protection laws. The California law is a specific challenge to the FCC's attempt to hamstring state efforts to protect consumers, and should result in some interesting legal fireworks this year.

Ernesto Falcon at the EFF argues in a blog post that California's legislation is open to ISP legal assault, and the state ignored many of the EFF's recommended improvements that would shielf the proposed law from the FCC's pre-emption efforts. The EFF also notes that what the California law attempts to accomplish could be accomplished by executive order anyway:

"If SB 460’s approach to directly regulating ISPs is found to be invalid, ultimately all the legislation does is require state agencies to contract with ISPs that follow the 2015 Open Internet Order. While an important provision, it can already be required with a stroke of the pen tomorrow under a Governor’s Executive Order much in the same way as Montana and New York. And while the 2015 Open Internet Order was a good start, why not bring to bear all the resources a state has to secure such an important principle for Californians?"

Those court battles will join the numerous other lawsuits that have been filed against the FCC by consumer advocacy groups and companies like Mozilla, who argue the FCC ignored objective data and the will of the public in the rush to repeal the rules. California is also participating in a lawsuit against the FCC by 21 state Attorneys General, several of which are also investigating how the FCC turned a blind eye to comment fraud during the net neutrality open comment period by "somebody" trying to downplay massive public opposition to the effort.

As these state efforts accelerate, ISPs have begun to whine that it's unfair for them to have to adjust to numerous, discordant, state-level protection efforts, something they probably should have thought about before repealing arguably modest and very popular federal protections.

Filed Under: broadband, california, competition, fcc, net neutrality, states rights

Nebraska The First 'Red' State To Craft Its Own Net Neutrality Law

from the the-people-have-spoken dept

So we've noted repeatedly how the attack on net neutrality is just one small part of a much larger, dumber plan by major ISPs to neuter nearly all federal and state oversight. A plan that involves gutting all meaningful FCC authority over broadband ISPs, then shoveling any remaining authority to the FTC. An FTC (surprise surprise) the broadband industry is currently in court arguing has no authority over broadband providers. Ajit Pai's FCC (at Verizon and Comcast lobbyists' request) also included provisions pre-empting states from trying to protect consumer privacy or net neutrality.

So far individual states aren't listening. New York, Washington, Minnesota, Massachusetts and California are all pushing their own net neutrality rules. And since the FCC's net neutrality repeal prohibits states from passing such laws, many of these states are creatively eyeing provisions that require ISPs adhere to net neutrality if they want to win government contracts, or if they want to keep getting taxpayer subsidies for those fiber networks they always tend to leave half built anyway.

ISP lobbyists have already begun trying to argue that these individual state efforts create a discordant patchwork of regulations that may be difficult to adhere to. But that's the sort of thing said lobbyists should have thought about before rushing mindlessly to destroy federal net neutrality rules. Rules that were actually among the more modest of any of the developed nations that have passed such protections (see The Netherlands, India, Japan, Canada, Germany).

Nebraska has now added itself to the list of states stepping up to the plate in the wake of federal consumer apathy. State Senator Adam Morfeld has introduced LB 856 (pdf), which would restore the federal net neutrality rules on the state level, and prevent ISPs from "limiting or restricting access to web sites, applications, or content." Speaking to his hometown newspaper, Morfield expressed surprise at the volume of bipartisan feedback he received in the wake of the FCC's decision:

"For me, this is an economic development and consumer protection bill,” Morfeld said. “The internet drives the economy now and it’s critical people have open and fair access to the internet. I knew I was passionate about it, but I was shocked at the support I received from Republicans, from Democrats and Libertarians," he said.

He shouldn't be surprised. Survey after survey (including some from the industry itself) show that net neutrality has broad, bipartisan support among consumers. One recent poll indicated that 83% of Americans opposed the FCC's handout to the telecom sector. The fact that the FCC ignored this support in its rush to repeal the rules will be playing a starring role in the looming lawsuits awaiting the agency later this year.

Whether Nebraska's law will be preempted by FCC authority is something else the courts will have to hash out, especially since the FCC has had its wrist slapped for overreach in the past when it has tried to preempt state authority on matters of broadband. ISP lobbyists (and the countless think tankers, lobbyists, consultants and academics paid to love them) express breathless adoration of "states rights" when states are criticized for passing anti-competitive state laws, but when those same states actually try to protect consumers and small businesses, you'll notice that this adoration of states rights magically disappears.

Filed Under: fcc, nebraska, net neutrality, states rights

California The Latest State To Propose Its Own Net Neutrality Rules

from the states-rights...or-not... dept

As we've been trying to help people understand, the FCC's repeal of net neutrality goes well beyond just killing net neutrality. The agency's "Restoring Internet Freedom" order not only guts FCC authority over broadband providers, but attempts to shovel any remaining oversight to the FTC. An FTC whose own authority over ISPs is already very limited, and which could be eroded almost completely if AT&T wins an ongoing court battle against the agency (this fact is conveniently forgotten by the small minority of folks still barking support for this historically-unpopular plan).

The goal is to eliminate nearly all meaningful federal oversight of uncompetitive telecom duopolies. But both Verizon and AT&T also successfully lobbied the FCC to include language banning states from trying to protect consumers from monopoly market abuses, whether they take the form of net neutrality violations, misleading pricing, hidden fees, or a rotating crop of privacy violations.

But the incumbent ISP stranglehold over state legislatures is so severe, this tends to be an uphill battle. Case in point: California recently tried to pass a new, EFF-approved privacy law in the wake of the GOP assault on FCC rules, only to have it scuttled by ISP lobbyists, who convinced state lawmakers that the proposal would somehow "increase popups" and "aid extremists." In reality the proposal was relatively modest, mirroring the deceased FCC proposal requiring ISPs disclose what data is being collected and sold (and to whom), while requiring they provide working opt out tools.

California's back again to try the same thing with net neutrality.

Unfortunately right now the proposal by California state Senator Scott Weiner is little more than a placeholder (pdf), but it tries to detail how California will tackle ISPs that violate net neutrality. Since the FCC repeal "pre-empts" states from passing their own net neutrality protections, states like Washington and New York have instead looked toward punishing bad actors like Comcast in other ways. Like restricting access to utility poles, rights of way, or government contracts to companies that repeatedly engage in anti-competitive, anti-consumer behavior. From the proposal:

"Under existing law, the Public Utilities Commission has regulatory authority over public utilities, including telephone corporations. Pursuant to its existing authority, the commission supervises administration of the state's telecommunications universal service programs. The Digital Infrastructure and Video Competition Act of 2006 establishes a procedure for the issuance of state franchises for the provision of video service, defined to include cable service and open-video systems, administered by these commissions.

The bill would state the intent of the Legislature to enact legislation to effectuate net neutrality in California utilizing the state's regulatory powers and to prevent Internet service providers from engaging in practices inconsistent with net neutrality...

There's of course several potential pitfalls here. One, the real issues will arise when California begins trying to define what net neutrality is. As we saw on the federal level in 2010 and 2015, lobbyists are immeasurably successful at using the complex technical nature of net neutrality to their advantage, convincing Luddite lawmakers to include so many loopholes as to make the rules useless. ISP lobbyists will likely work overtime to either water down the bill's language to the point of absurdity, misrepresent what the bill does (as they did with privacy), or bombard the state with lawsuits (likely all three).

And that's of course California. There's countless states where companies like AT&T and Comcast quite literally own state legislatures and most telecom regulators (Tennessee comes quickly to mind). States where similar laws will never be passed or enforced, creating huge oversight gaps for companies with thirty-years of documented anti-competitive history.

That's why, again, the best path forward to protecting net neutrality remains in hoping the courts get it right, and reverse the FCC's repeal for being "arbitrary and capricious," ignoring the public welfare, and turning a blind eye to shady comment period fraud. Not that states shouldn't try to protect consumers, but without rooting out state-level telecom influence and corruption first, passing meaningful state-level net neutrality protections -- then seeing consistent enforcement -- remains a long shot.

Filed Under: california, fcc, net neutrality, states rights