The Federal Communications Commission will no longer protect net neutrality. Now, officials in more than a dozen states are trying to take on the job.
Within minutes after the FCC voted to jettison its Obama-era rules that prohibit internet providers from blocking or discriminating against lawful content, New York Attorney General Eric Schneiderman said he would lead a multistate lawsuit against the agency to preserve the regulations. Ars Technica reported that that so far attorneys general in Illinois, Oregon, Massachusetts, and Washington have also announced suits. Iowa Attorney General Tom Miller’s office tweeted that he will consult with other attorneys general about a suit. Others are likely to join as well---18 state attorneys general signed a letter encouraging the agency to delay the vote.
Schneiderman didn't explain his legal case against the FCC, but cited the flood of fake comments in the public record as a corrupting influence on the FCC’s process. Schneiderman led a months-long investigation into the fake comments, which often used real people's names and addresses without their knowledge, and had called for the FCC to delay the vote. It's not clear which states will join the suit yet, but 18 state attorneys general signed a letter encouraging the agency to delay the vote.
Washington state Attorney General Bob Ferguson called the FCC order a violation of the Administrative Procedure Act, which bans federal agencies from issuing "arbitrary and capricious" rules. Legal experts have told WIRED that such a suit just might succeed, though courts often defer to federal agencies.
Suing the FCC wasn't enough for Washington Governor Jay Inslee. His office published a blog post Wednesday outlining measures he and state legislators plan to take to ensure net neutrality. The FCC’s action Thursday bars states from imposing their own net neutrality rules, but Inslee’s ideas seem designed to bypass those restrictions.
The Washington proposal would make life difficult for internet service providers that don't promise not to block or discriminate against lawful content, and penalize companies that break their promises. That might mean revoking tax breaks or revoking preferential treatment in utility pole access for some carriers. The plan also calls for a statewide speed standard for broadband internet, and for the expansion of publicly owned internet services.
California state Senator Scott Wiener promised in his own blog post to draft similar legislation over the next 60 days. "California can regulate business practices to require net neutrality, condition state contracts on adhering to net neutrality, and require net neutrality as part of cable franchise agreements, as a condition to using the public right-of-way for internet infrastructure, and in broadband packages," he wrote.
Both proposals are a long way from becoming law. But some legal experts think there's a good chance that the FCC's rules barring states from making their own rules won't hold up in court. "There's been a lot of litigation not just with the FCC but with other agencies about federal preemption," Marc Martin, chair of law firm Perkins Coie’s communications practice. "Courts often look askance at it. It's an aggressive tactic." But he says there is some legal precedent for the FCC's move, pointing to the agency's 2004 decision to quash Minnesota's voice-over-internet-protocol regulations.
