On December 14, 2017, the Federal Communications Commission (“FCC”) voted along party lines to adopt a 210-page Declaratory Ruling, Report and Order, and Order (the “Restoring Internet Freedom Order” or “Order”) geared towards overhauling the net neutrality framework established during the Obama administration in 2015 (the “2015 Order”). On February 22nd, the Order was officially published in the Federal Register — kicking off the period for filing of court challenges to the FCC’s decision and for efforts by Democrats in Congress to signal dissent through passing a resolution of disapproval under the Congressional Review Act.
Against the backdrop of these actions at the federal level, for the past few months several states have taken matters into their own hands and begun proposing their own ways to restore the 2015 Order’s net neutrality rules within their borders. Such efforts, even if successful at the state level, will likely be met in the courts by the Restoring Internet Freedom Order’s explicit statement that the Order preempts all “inconsistent state and local regulations.”
Governors from Montana, New York, New Jersey, Hawaii, and Vermont, for example, have issued executive orders that condition Internet Service Provider (ISP) contracts with state agencies on adherence to net neutrality principles. Other state legislative proposals would implement similar requirements for internet-related state contracts.
In addition, several state lawmakers have introduced legislation that would implement net neutrality principles at the state level. A proposed bill in California (SB-460), for example, would prohibit providers from blocking lawful content (with exceptions for reasonable network management), impairing or degrading lawful traffic, engaging in paid prioritization, or using marketing tactics that are misleading with respect to treatment of internet traffic. Other state proposals would create additional network management reporting requirements (e.g., Idaho’s HB-425), require disclosure of paid prioritization policies and agreements (e.g., New Jersey’s A-5257), and channel penalties for noncompliance with net neutrality principles towards funds for municipal broadband projects (e.g., West Virginia’s SB-396). As of the date of this posting, two state legislative proposals, California’s SB-460 and Washington’s HB-2282, have already passed in one state legislative house and advanced to the other for consideration.
Some states have also turned to the courts as a way to reinstate the original 2015 Order. As soon as the Order was published in the Federal Register, New York Attorney General Eric Schneiderman announced that he and 22 other state attorneys general filed a petition for review of the Order in the U.S. Court of Appeals for the D.C. Circuit, arguing that the FCC’s repeal of the previous Order’s net neutrality rules was “arbitrary, capricious, and an abuse of discretion” within the meaning of the Administrative Procedure Act. Other litigants have 10 days from the date the Order was published in the Federal Register to file similar petitions for review in order to be included in a court lottery that will consolidate the challenges. Trade associations representing both large and small Internet Service Providers and other supporters of the Order are also expected to file in defense of the FCC’s decision.
Meanwhile, a number of municipal jurisdictions are signaling their intent to move forward with plans to provide public broadband on their own terms. In San Francisco, for example, officials are preparing for a Request for Proposals “to design, build, finance, operate, and maintain Citywide Fiber” infrastructure that, among other things, will require ISP applicants to adhere to certain principles, including net neutrality.
In short, the debate on net neutrality continues on many fronts — at the federal, state, and local levels, and before courts, legislatures, agencies, and elsewhere. While the ultimate outcome is uncertain, it is clear that 2018 will see significant activity around the issue of net neutrality.