New York State Eyes Its Own Net Neutrality Law

from the looming-legal-fisticuffs dept

Numerous states say they'll be crafting their own net neutrality protections in the wake of the FCC's recent vote to dismantle the rules. ISPs of course predicted this, which is why Comcast and Verizon successfully lobbied the FCC to include provisions in its "Restoring Internet Freedom" order that bans states from protecting consumers from privacy and net neutrality violations, or other bad behavior by incumbent ISPs. In ISP lobbying land, stopping states from writing protectionist law is an assault on "states rights," but when states actually try to help consumers you'll note the concern for states rights magically disappears.

Regardless, New York State, California and Washington have all indicated that they will attempt to test the FCC's state preemption authority on this front in the new year by crafting their own net neutrality legislation. You'll recall that the FCC already had its wrist slapped by the courts for over-reach when it tried to preempt states from passing anti-community broadband laws, quite literally written by large ISPs, intended to hamstring creative solutions (including public/private partnerships) for the telecom industry's broadband competition logjam.

But even if the FCC wins this new legal fight over state authority, folks like New York Assemblymember Patricia Fahy argue there's numerous steps states and cities can take to protect consumers on the net neutrality front without running afoul of the FCC's order. The text of her proposal (pdf) includes numerous proposals, including refusing to do business with companies that repeatedly violate net neutrality:

"If you are going to be a contractor and want to work with New York, then you must meet the principles,” Fahy tells Fast Company. She hopes that this approach will get around a roadblock known as preemption. The Constitution generally gives the federal government final authority over commercial activities that cross state lines. But while New York can’t require ISPs to uphold net neutrality, it can use its “power of the purse” to punish ISPs that don’t. "There’s a decent amount of precedent for saying, if you want a state contract, you have to meet such and such requirements,” she says, noting construction contracts contingent on certain labor practices or the use of U.S.-made steel."

Again we'll see how this all pans out in the new year. States will likely face the same problem as the federal government did when trying to define net neutrality violations amidst a sea of ISP lobbying influence. Regardless, the FCC's battles with the states will be just one part of a cavalcade of lawsuits filed against the FCC in the new year for over-stepping its authority, ignoring the public, and rushing through what's potentially the least-popular decision in tech-policy history.

This same sequence of events played out earlier this year when the GOP and Trump administration rushed to kill consumer broadband privacy protections, resulting in numerous states attempting to create their own broadband privacy laws. And while Comcast, Verizon and AT&T lobbyists like to whine that states are wreaking havoc by creating discordant, inconsistent consumer protections, they tend to ignore the fact that this wouldn't be happening if they hadn't spent millions of dollars gutting popular, over-arching protections on the federal level.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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