Montana Says It Won't Do Business With Net Neutrality Violating ISPs

from the cue-the-backlash dept

In the wake of the federal repeal of net neutrality rules, numerous states have responded by proposing their own net neutrality rules that either mirror the FCC's discarded rules, or impose new restrictions on net neutrality violating ISPs trying to secure state telecom contracts. New York, Massachusetts, Washington and California are among a dozen states considering their own rules. These efforts come despite the fact that Comcast and Verizon successfully lobbied the FCC to include provisions trying to ban states from protecting consumers in the wake of federal apathy on the subject.

Unwilling to run the legislative gauntlet, Montana has taken a shortcut. Montana Governor Steve Bullock has signed an executive order banning ISPs from being able to secure state contracts if they violate net neutrality. Bullock on Twitter proclaimed that the state's future depended on the internet, well, actually working properly:

Montana's future depends on a free and open internet. Today we became the first state in the nation to actually do something to safeguard internet freedom. — Steve Bullock (@GovernorBullock) January 22, 2018

Starting in July, the order prohibits the state from doing business with any ISP that blocks or throttles competing services. It also prohibits ISPs from offering "paid prioritization," or the ability to offer deeper-pocketed companies an unfair advantage by getting faster speeds and lower latency than their competitors. Note, that's not to be confused with offering non-competitive network prioritization to things like medical services, something that (contrary to ISP claims) has always been allowed via most reasonable net neutrality rules.

In a statement, Bullock's office urged other states concerned about net neutrality to use its order as a template for their own efforts:

"As the first governor in the country to implement action in the wake of the FCC’s decision to repeal net neutrality rules, Governor Bullock invited other governors and statehouses to join him. Governor Bullock’s administration will offer the framework to other states who wish to follow. "To every governor and every legislator in every statehouse across the country, and to every small business and every Fortune 500 company that wants a free and open internet when they buy services: I will personally email this to you,” Bullock continued.

There're a few caveats of note. One, the order expressly allows blocking, throttling, and other such behaviors if it's considered "reasonable network management that is disclosed to the consumer." Of course what an ISP deems "reasonable" has often been absurdly broad, and what counts for "disclosure" usually consists of a paragraph of mouse print buried in an ISPs' terms of service.

ISPs have long hidden anti-competitive behavior (like usage caps) behind claims they were only acting to protect the health and security of the network. As such, what's considered "reasonable" or "disclosed" is something you'll need to keep an eye on as ISPs fire up their lobbying efforts in the state to dramatcally weaken or scuttle the proposal outright.

Two, Comcast and Verizon lobbied successfully to have the FCC include a provision in its comically-named "Restoring Internet Freedom" order that pre-empts states from protecting consumers. Whether the FCC has the authority to pre-empt states in this fashion has been a contested subject historically, so you should probably expect this to result in some notably entertaining legal fireworks. That's before you consider the fact that 22 State Attorneys General are suing the FCC over its handout to industry, and several are investigating the fraud that occurred during the open comment period.

ISPs have tried to complain that a patchwork of discordant state-level laws will prove cumbersome for them to navigate and might result in some fairly awful, over-reaching proposals on the state level. So far though, most of the proposals have simply mirrored the discarded (provided ISPs win in court) federal rules. Regardless, ISP folks genuinely worried about this outcome probably should have considered this before they lobbied to dismantle arguably modest federal protections, in what's considered one of the least-popular tech policy decisions in the history of the modern internet.

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, montana, net neutrality