Washington plants net neutrality flag as battle heads to states

As the FCC says goodbye to its net neutrality rules, the states are stepping up. How will that affect the fight for an open internet?

Marguerite Reardon Former senior reporter
Marguerite Reardon started as a CNET News reporter in 2004, covering cellphone services, broadband, citywide Wi-Fi, the Net neutrality debate and the consolidation of the phone companies.
Marguerite Reardon
4 min read
Sarah Tew/CNET

States across the US are taking the protection of the open internet into their own hands.

This week, Washington became the first state to approve its own net neutrality law.

The law, signed Monday by Gov. Jay Inslee, prohibits internet service providers from blocking or slowing web content. It also prohibits ISPs from charging internet companies for so-called fast lane access that prioritizes their traffic over that of the competition.

The new net neutrality law comes almost three months after the Federal Communications Commission voted to repeal the Obama-era rules that ensured all traffic on the internet is treated equally and prevented broadband and wireless providers from hindering the delivery of online content.

Protestors Rally At FCC Against Repeal Of Net Neutrality Rules

Reinstating Obama-era net neutrality rules has bipartisan support at the state level. 

Chip Somodevilla/Getty Images

But as Washington and other states begin passing their own legislation and taking other actions to protect consumers' access to an open internet, it's unclear if the new measures will actually stick. Those moves may set these states on a collision course with the federal government. The FCC's rules ban states from trying to supersede its laws, and there are other looming legal concerns.

"The states' bigger problem is the US Constitution itself, specifically the idea that states can't interfere with interstate commerce," said Matt Schettenhelm, an attorney and government litigation analyst with Bloomberg Intelligence.

How states are fighting back

More than half of US states, including California, Connecticut and Maryland, are considering legislation to protect net neutrality. Oregon is close to passing narrower legislation than the law passed in Washington. It requires companies doing business with state and local agencies to adhere to net neutrality. Governors in several states, including New York, New Jersey and Montana, have done the same thing as Oregon through an executive order.

Each of these states is likely to face lawsuits from internet service providers, which will make two arguments. The first comes from the FCC, which said that its authority pre-empts any state attempts to pass their own net neutrality regulations.

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When it comes to the FCC's authority, legal experts say it's a toss-up on how a court would rule. The commission's pre-emption powers are limited. While courts have sided with the FCC when it comes to pre-empting states' rules governing voice over IP services, in 2016 an appeals court said the agency didn't have authority to preempt states that passed laws banning municipally owned networks.

But Ernesto Falcon, the legislative counsel for the Electronic Frontier Foundation, said that the FCC may have a hard time arguing it has authority to pre-empt states. That's because it abdicated authority to oversee broadband networks as part of its order repealing the net neutrality rules.

"How can they have no authority to regulate broadband," Falcone said, "but then claim they have wide-reaching authority to ban states from passing their own regulations?"

The US Constitution trumps all

Even if the courts don't buy the FCC's authority in this instance, Washington and other states passing such laws will have a much tougher fight in defending their laws against the second argument: that they violate the US Constitution, which bars states from regulating commerce that crosses state lines.

The argument here is that broadband service is a form of interstate commerce. As such, it can't be regulated by individual states, because that would impose undue regulatory burdens on companies and would make doing business online too expensive and difficult.

Imagine if each state could impose its own rules for trucks or planes crossing into its territory. Internet service providers could make the same argument for broadband traffic, arguing that it would be too difficult to change their traffic management practices at state lines. If the courts accept this argument, they won't even have to rule whether the FCC has authority to pre-empt states.

"When states wear their regulator hats, they're very vulnerable," Schettenhelm said.

EFF's Falcon agrees that Washington state, in choosing to adopt sweeping net neutrality regulations that affect all broadband services, has chosen the most difficult legal path. But he argues it's not impossible.

Since Congress has failed to act in passing legislation to protect net neutrality and since the FCC reclassified broadband as an unregulated service, states could argue that they should be able to protect their own citizens, he said.

"There is nothing in federal law that regulates privacy and nondiscriminatory practices on the internet," he added.

Politics vs. law

Even though Democrats and Republicans on the FCC and in Congress are split along party lines on the agency's repeal of net neutrality, at the state level there's bipartisan support for the 2015 rules. The bill in Washington was drafted and supported by both Democrats and Republicans.

"Constituents that are upset with what is happening to net neutrality protections at the federal level are turning to state and local lawmakers," said Falcon. "And those lawmakers feel like they have to do something to respond."

Schettenhelm said that legal battles -- even if the states lose -- could still be a win for net neutrality supporters.  

"Net neutrality backers likely believe even a loss helps the larger narrative, since any enduring solution will likely come from Congress," he said. "That solution isn't coming anytime soon, but the state skirmishes will give the issue even more attention and might help with the long game."

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