In their quest to maintain net neutrality, are some New Jersey lawmakers possibly stepping into unconstitutional territory?

An Assembly panel on Monday moved a package of legislation designed to ensure New Jerseyans continue to get all internet content without discrimination or extra charges.

Net neutrality — the idea that all content transmitted over the internet should be treated equally without imposing different charges on specific users, applications, or content — has been a hot topic this past year. In December, the Federal Communications Commission, with the support of President Donald Trump, voted to end the practice. The decision, which is expected to take effect in six weeks, is now tied up in the courts. But many states have been implementing their own legislation in order to keep net neutrality in place.

The New Jersey Assembly Science, Innovation and Technology Committee has issued three measures to require internet service providers operating in the state to continue the practice. It did so after listening to pleas that net neutrality is vital for the enjoyment of citizens, the transaction of business, the conduct of government work, and the continuation of free speech and democracy.

Keeping the internet free

“First of all, this is basically a consumer protection; consumers have the expectation of having the internet be free, open, and fair,” said Assemblyman Nicholas Chiaravalloti (D-Hudson), one of the three sponsors of the package. “These measures would help protect New Jersey consumers from potential price gouging and other unfair practices.”

Gov. Phil Murphy has already taken some action, signing last month an executive order requiring all ISPs that do business with the state adhere to the principles of net neutrality beginning July 1. New Jersey has also joined a multistate lawsuit over the FCC’s repeal of the rules. More than half the states have taken some action in opposition to the FCC’s ruling, and a poll last December found 83 percent of Americans supported the maintenance of net neutrality rules.

These actions are imperative to maintain a democracy, said Chad Marlow, advocacy and policy counsel with the American Civil Liberties Union.

“Granting ISPs the ability to decide what online content is permitted to travel on the information superhighway’s HOV lanes, what information will be relegated to the slow lane, and what information will be refused access to the on-ramp presents a significant threat to the freedom of all Americans,” he said. When access to information and communication “are blocked or inhibited, democracy dies.”

Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, agreed, saying, “When information is limited, the first to go are the dissenting voices.”

Unconstitutional?

A baker’s dozen of companies and associations, including Verizon, Comcast, and AT&T, expressed their opposition to the bills. Two representatives testified that the measures are not needed, because all major ISPs have promised not to treat content differently. They argued that the bills are likely unconstitutional because states do not have the right to regulate the internet.

“Every major broadband provider has promised not to block, throttle, or discriminate,” said Jon Leibowitz, a New Jersey native who chaired the Federal Trade Commission from 2009 to 2013 and now chairs a consortium of telecommunications companies called the 21st Century Privacy Coalition. “The FTC can ensure the broadband providers keep those promises,” he added.

Leibowitz, who said he supports net neutrality, added that the FCC’s action ending net neutrality pre-empts the states from taking action to impose their own similar rules. Allowing states to write their own regulations “does not make sense for an inherently interstate service like broadband access.” Instead, Congress should pass a law spelling out the terms of net neutrality.

“I think it would be great if they can do this in Congress, but we are not going to wait,” said Assemblyman Andrew Zwicker (D-Somerset), who chairs the committee and is co-sponsoring the bills. Referencing statements that the ISPs have promised not to discriminate with internet content, Zwicker added, “If that’s the case, then this shouldn’t matter. It’s a non-issue.”

Individual state laws are problematic for several reasons, said Gerry Keegan, an assistant vice president with CTIA, a trade association for the wireless communications industry.

Crossing state lines

“For mobile customers, as they cross state lines, different rules might apply,” he said. “The question is whether the laws that apply would be the ones where the user-purchased service is located, where the user is currently located, or where the cell tower is located.”

He added that the industry currently employs 112,000 people in New Jersey and invests $11 billion a year in the state and might be less likely to make additional investments due to “regulatory uncertainty” should the bills become law.

Sinha said the loss of net neutrality has the potential to hurt economic growth, particularly in the technology sector. “Startups could lose out to much bigger companies,” he said.

Patricia Tumulty, executive director of the New Jersey Library Association, said maintaining net neutrality is crucial so that people without access to high-speed internet can continue to get information at public libraries.

“There is no question that nonprofits such as ours would be put on the information slow highway,” she said.

The bills passed 4-0, with Democrats in support and two Republican members abstaining. Both Republicans, Assemblywoman BettyLou DeCroce of Morris County and Christopher DePhillips of Bergen, said they want more discussion on the issue — initially, the bills were slated for a hearing only, not a vote — and are concerned New Jersey will wind up spending a lot of time and money defending these laws in the courts. The measures were sent to the floor of the Assembly for a vote.

Marlow said it is not clear that New Jersey’s passage of the bills would violate the Constitution, and he cautioned committee members not to believe either the promises the ISPs made, or the industry representatives’ claims that the FTC would hold the companies to those promises.

“No industry spends millions lobbying to eliminate regulations just so they can adhere to them voluntarily,” he said. “As to the FTC riding to the rescue … it is neither funded nor staffed up to the level needed to enforce net neutrality and they have made no statements that they will.”

In addition to the ACLU and libraries, the groups supporting the bills had diverse constituencies, including New Jersey Citizen Action, New Jersey Education Association and New Jersey Sierra Club.

Specifically, the bills are:

A-2131, which would direct the Board of Public Utilities to prohibit an ISP from installing broadband telecommunications infrastructure on any pole or post located on or over any highway or any right of way, or on any underground facility, belonging to a public utility or cable television company, unless the ISP adheres to net neutrality principles.

A-2132, which would prohibit the awarding of any public contract to ISPs that do not follow net neutrality.

A-2139, which would require a cable television company to commit to the principle of net neutrality for all internet customers as a condition of approval of a BPU application for certain services.