New York state joins Montana in requiring net neutrality

Net neutrality may not be the law of the US, but it's now the law of New York state. 

On Wednesday, Gov. Andrew Cuomo signed an executive order (PDF) that requires New York state agencies to only contract with internet service providers that follow net neutrality principles. This means ISPs doing business with the state must promise to treat internet traffic equally, preventing them from favoring some websites over others. 

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Cuomo's order says net neutrality "means ISPs will not block, throttle, or prioritize internet content or applications or require that end users pay different or higher rates to access specific types of content or applications."

New York is the second state to make net neutrality its policy, after Montana, where Gov. Steve Bullock signed an executive order on Monday. The Federal Communications Commission narrowly voted in December to get rid of the net neutrality regulations which guaranteed traffic on the internet was treated equally, and prevented broadband and wireless providers from blocking or slowing online content. The FCC also voted to eliminate the legal foundation granting the agency oversight over internet service providers. 

"The FCC's dangerous ruling goes against the core values of our democracy, and New York will do everything in our power to protect net neutrality and the free exchange of ideas," Cuomo said in a statement. "With this executive order, we reaffirm our commitment to freedom and democracy and help ensure that the internet remains free and open to all."

The FCC declined to comment.

Supporters of net neutrality say the rules, which were adopted in 2015 under President Barack Obama, are necessary to ensure broadband companies don't abuse their power as gatekeepers of the internet. Companies like Facebook, Google, and Twitter supported the 2015 rules. But broadband providers say the rules were too onerous and stifled investment. Broadband providers like AT&T, Comcast, and Verizon support the FCC's repeal of the rules. 

The issue has become politicized on Capitol Hill with Democrats supporting the old rules, while many Republican lawmakers support the repeal of the rules, arguing the regulations went too far. 

Net neutrality supporters have vowed to continue to fight for protections. Before the ink was even dry on the FCC's order to remove net neutrality regulation, lawmakers in states across the country vowed to use a mix of legislative action and legal moves to fight the FCC's repeal. Attorneys general from 22 states, including New York, filed a lawsuit last week to block the repeal. The executive orders signed by the governors in New York and Montana are another prong of this strategy. And they could end up having the most immediate effect in making sure that companies comply with the old rules, according to Travis LeBlanc, former head of enforcement at the FCC and a partner at the law firm Boies Schiller Flexner.

State and federal governments often use procurement policies to enact policy initiatives, he explained. For example, governments may require businesses they contract with not to discriminate based on gender identity or sexual orientation regardless of whether there is a law that prohibits such practices. The effect on broadband service could be significant because companies can't easily offer internet service that complies with net neutrality requirements for government agencies and not also apply the same policies to consumer services. 

"The more states that adopt such measures, the more effective it becomes," LeBlanc said. "And when you have big states like New York or California adopting such a policy, it can set the national standard."

For this reason, LeBlanc said it's significant that New York has signed on to this approach. 

"If you're a wireless carrier, it's going to be very difficult to avoid blocking and throttling and paid prioritization in New York, but not do it in Texas or someplace else."

But there could still be legal challenges. Republicans on the FCC have made it clear that the repeal should be applied nationally and that states shouldn't try to adopt their own rules. They argue forcing companies to comply with individual state requirements for services that cross state boundaries is too onerous for companies providing broadband services.

"The order makes plain that broadband will be subject to a uniform, national framework that promotes investment and innovation," Republican Commissioner Michael O'Rielly said in his statement before the FCC's vote last month. "Broadband service is not confined to state boundaries and should not be constrained by a patchwork of state and local regulations."

But LeBlanc says a legal challenge over a state's procurement policy that protects net neutrality is likely to fail. 

"No one is required to do business with a state or federal government," he said. "That's a voluntary choice and if you want to do business with New York or Montana, you have to agree to the terms they set."

First published Jan. 24 at 10:49 a.m. PT.
Updated 1:12 p.m. PT: Adds background information on net neutrality.

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