Share All sharing options for: The next front in the net neutrality war: Feds versus the states

The United States is about to go to war with itself over net neutrality.

In the hours after the Trump administration scrapped rules that required internet providers to treat all web traffic equally, a handful of states mobilized in a bid to reverse the decision by the Federal Communications Commission in court — or perhaps write their own new regulations as a replacement.

To start, a coalition of state attorneys general, led by New York, pledged on Thursday that they would sue the FCC to stop its rollback from taking place. Meanwhile, policymakers in at least two states — California and Washington — said they’d try on their own to prevent companies like AT&T, Charter, Comcast* and Verizon from blocking websites, slowing down web traffic or prioritizing their movies, music and other content above their rivals’ offerings.

Legislating is an especially fraught, difficult proposition. The order adopted by the FCC on Thursday doesn’t just kill the existing net neutrality rules — it explicitly seeks to override local policymakers from pursuing their own laws. And the FCC’s Republicans on Thursday signaled that they’d vigorously pursue any states that tried that anyway.

“I hope that most states and localities will not waste time and resources attempting to push the boundaries, but I realize that some will do so regardless,” said commissioner Michael O’Rielly before he and his colleagues voted on the repeal.

“I expect the agency to be vigilant in identifying and pursuing these cases,” O’Rielly said. “I also commit to work closely with [agency leadership] to help quash any conflicts that arise.”

Maybe none of these state-driven efforts will succeed, but it still suggests the divisive nature of the FCC’s new decision, voted along party lines, to undo one of the signature accomplishments of the Obama administration.

In 2015, the FCC under Democratic stewardship advanced rules that treated telecom giants not unlike utilities, aiming to stop them from meddling with the web. The rules also prohibited internet service providers from charging tech companies or others for faster delivery of their music, movies or other content — “fast lanes,” as critics have derided them.

On Thursday, though, the Republican-led FCC laid waste to those rules. Now, the door is open for broadband giants to pursue these so-called paid prioritization arrangements if they choose. And in place of the Obama administration’s net neutrality protections, the FCC under Trump is going to only require the likes of AT&T and Verizon to be transparent about their network practices. Another federal agency — one seen by critics as weaker — will police those companies’ net neutrality promises.

The complete, unabashed reversal is bound to touch off a series of court challenges from tech giants and consumer advocates. Groups that represent Amazon, Facebook, Google and others have already said they’re weighing their options, as have activists, who feel the FCC didn’t listen to the millions of Americans who urged the agency to keep its net neutrality rules in place. And among the lot of early challengers are state attorneys general, led by New York’s Eric T. Schneiderman, who sharply criticized FCC Chairman Ajit Pai for proceeding amid robust opposition.

So far, states like Massachusetts, Illinois and Oregon said they’d join the effort. Pennsylvania’s attorney general offered his support on Friday. Iowa expressed its interest this past week, and Connecticut signaled its interest in fighting the FCC in court.

“New Yorkers deserve the right to a free and open Internet. That’s why we will sue to stop the FCC’s illegal rollback of net neutrality,” Schneiderman said on Thursday. He did not detail his full list of allies, but a total of 19 states previously urged the FCC to stand down on its repeal.

Schneiderman particularly has spent months probing the roughly 21 million comments that the FCC received about net neutrality. In recent weeks, he’s concluded that many of the submissions are fake — using names sometimes without the named individuals’ knowledge. So Schneiderman and other Democrats previously pressed the FCC to delay its vote, but Pai refused to relent or even aid in the state’s investigation.

Meanwhile, other local policymakers are forging ahead with their own plans. In California, for example, a state senator on Thursday pledged to introduce legislation and “step in and ensure open internet access in California.”

And in Washington state, Democratic leader Gov. Jay Inslee has sought to push the local utilities regulator to require that internet providers certify they aren’t blocking, throttling or otherwise interfering with web traffic.

In the end, some efforts in California, Washington or elsewhere are perhaps limited by the FCC’s order. And this sort of federal blockade on state regulation isn’t new or really even that rare. It will eventually be challenged in court by foes — local regulators, tech giants and activists — who believe the FCC overstepped its bounds.

At most, though, the state-led efforts Thursday could spell the eventual undoing of the Trump administration’s attempt to repeal net neutrality rules. And, at least, it serves to highlight the deep rifts between policymakers around the country over how to regulate the web.

Whatever the outcome, the fight is just beginning. “This is not just an attack on the future of our internet,” said Schneiderman, the attorney general of New York. “It’s an attack on all New Yorkers, and on the integrity of every American's voice in government — and we will fight back.”

* Comcast, through its NBCU arm, is an investor in Vox Media, which owns this website.

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