Net-neutrality is over. Now California, Oregon are stepping in

Mike Snider | USA TODAY

Show Caption Hide Caption Extra charges for Facebook, YouTube? Never, I say Would you pay extra for Facebook, Snapchat and YouTube? That's how they do it in England, reports Jefferson Graham. Could that happen here too, in the wake of the relaxed FCC Net Neutrality rules?

Net neutrality is dead. Long live Net neutrality.

The longtime hot-button issue — essentially about whether your Internet service provider should be able to block or slow legal traffic, or charge for faster delivery of some content — won't likely recede any time soon, even though a milestone nears in the national tussle about the topic.

Some states are also considering laws preventing Internet service providers from blocking and throttling content on consumers' broadband connections, even though they're likely to face court challenges from opponents who argue that the new federal rules prevent states from passing their own.

California's state judiciary committee will hear one such bill soon.

"In California, we can lead the effort to clean up this mess and implement comprehensive, thorough Internet protections that put California Internet users and consumers first," said state Sen. Scott Wiener, D-San Francisco, who sponsored the bill, in a statement.

Oregon has already passed its own. On April 10, Gov. Kate Brown signed into law a measure requiring state agencies only to do business with ISPs that do not block or slow traffic or accept payment to prioritize some data.

#ICYMI: Yesterday I signed Oregon's #NetNeutrality bill into law, to help ensure the internet remains open and accessible to all. What exactly does that mean? Watch here: https://t.co/m2OLdiziAR — Governor Kate Brown (@OregonGovBrown) April 10, 2018

Attorneys general in 23 states and the District of Columbia have filed a suit seeking to prevent the rules change, calling it "arbitrary, capricious and an abuse of discretion."

All of this activity suggests Net neutrality could likely be an issue in the mid-term elections and perhaps even in the 2020 campaign cycle.

If so, that could be good news for politicians hoping to draft on the issue. Most citizens (86%) support Net neutrality, as defined by the 2015 rules, according to a new survey, released Wednesday by the non-partisan group Voice of the People, and conducted by the Program for Public Consultation at the University of Maryland. It surveyed 997 registered voters in March.

Support for Net neutrality crosses party lines among voters with 90% of Democrats in favor and 82% of Republicans, the survey found. Support from Republicans has risen from 75% when a similar survey was conducted in December 2017.

That means a growing populace wants "the Internet to work the way it's always worked," said Phillip Berenbroick, senior policy counsel for Public Knowledge, a non-profit group that has filed suit challenging the Federal Communication Commission's December overturning of the 2015 rules. "And you have got a minority of folks here in Washington that currently have access to levers of power that are in disagreement with more than 80% of the American public. ... It’s baffling."

Telecom giants, which lobbied for the Obama-era rules' repeal, can also get legislators' attention. Since 1989, the telecom industry, led by AT&T, Comcast and Verizon, has donated more than $100 million to sitting members of Congress and their leadership PACs, 55% of that to Republicans, according to a report in The Verge.

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Still, in Congress some Net neutrality-supporting lawmakers hold out hope for an immediate resolution: a Congressional Review Act measure to reinstate the 2015 rules. There's enough support already in the U.S. Senate for a vote, and it must be done by June 20.

The likelihood of the Congress Review Act measure's success is slim, however. In the U.S. House, 160 Democrats are already on board for a vote that needs 218 signatures. But a CRA measure must also be approved by President Trump, an unlikely event since he appointed Ajit Pai, chairman of the FCC, and called the Obama-era rules a "power grab."

Paihas been shepherding through the repeal of the old rules and their replacement with the Restoring Internet Freedom order, a set of lighter-touch regulations. It was expected to officially take effect Monday but won't kick in for at least a few more weeks as it undergoes additional vetting by the Office of Management and Budget.

In reality, the FCC has already shifted its stance. Within a month of being appointed by Trump, Pai ended several Net neutrality-related investigations started by his predecessor, including the investigation of whether free data plans offered by wireless providers such as AT&T and Verizon violated the agency's regulations.

This has left the issue of Net neutrality in the hands of states and courts. The legal action by the state attorneys general — along with suits filed by groups such as Free Press and National Hispanic Media Coalition, and companies including Mozilla, Etsy and Vimeo — will begin going through the judicial process in the coming months.

Also happening in the states: several governors have passed executive orders requiring ISPs doing business with the state follow Net-neutrality conduct.

Court fight coming

These state initiatives could yield more court challenges, too. USTelecom, a trade group made of ISPs including AT&T and Verizon, has promised to sue to block Net-neutrality measures adopted by states such as Washington, the first to do so, "to avoid a piecemeal, patchwork approach to the future of our internet," the group's CEO and president Jonathan Spalter said on the group's blog.

A potential "maze of competing rules" could make broadband prices go up, confuse customers "and diminish investment in the expansion of high-speed broadband infrastructure — which would disproportionally hurt rural and other traditionally underserved communities across the country," said Rob Tappan, spokesman for Broadband for America, an organization with members that include AT&T, CenturyLink, Charter, Comcast and Cox.

Bipartisan legislation is a better alternative, he says.

But legislation requires compromise and that has been elusive. Net-neutrality supporters want rules that prevent ISPs from block and slowing content, and from charging for fast lanes. ISPs have publicly agreed not to do any of that, but they oppose heavy-handed regulations.

"Nobody really wants to have broadband providers to have unfettered control, but when it’s spun as governmental overreach all of a sudden people start viewing it differently," said Marc Martin, an attorney in the communications practice at Washington, D.C.-based law firm Perkins Coie, and a former FCC staffer.

Admittedly, Net-neutrality laws legislated state-by-state "would be extremely complex," said Jaime Fink, co-founder and chief technology officer at Mimosa Networks, a wireless broadband provider in Santa Clara, Calif. But the state initiatives could help generate support for a nationwide solution. "There are still strong advocates for Net neutrality in Congress continuing to push for action at a federal level," he said.

Fast lanes may lose their stigma

Amid those efforts, there's the possibility that fast lanes, or "paid prioritization" of content may eventually become fair game. "Prioritization is not a dirty word," said Rep. Marsha Blackburn, R-Tenn., during a House subcommittee hearing on the issue this week. "We need a better understanding of what specific harmful conduct we are trying to address, and a better understanding of how to leave the door open for the beneficial prioritization that’s necessary to keep the Internet as we know it working, and to bring even more benefits to consumers."

A possible solution: within the federal legislation, create an independent tribunal to weigh Internet issues including competition and privacy involving ISPs and dominant tech platforms such as Facebook and Google.

Such a tribunal beyond the FCC or Federal Trade Commission would solve concerns about each agencies' enforcement powers, says economist Hal Singer at Adjunct Professor at Georgetown’s McDonough School of Business, who has proposed the idea.

And holding ISPs and big Internet players to similar standards would create a more equitable playing field, he says. "What we want to do is de-politicize this process," Singer said.

Follow USA TODAY reporter Mike Snider on Twitter: @MikeSnider.