Washington state Governor Jay Inslee Monday signed the nation’s first state law intended to protect net neutrality, setting up a potential legal battle with the Federal Communications Commission.
The law bans broadband providers offering service in the state from blocking or throttling legal content, or from offering fast-lane access to companies willing to pay extra. The law doesn’t stop providers from imposing data limits, and doesn’t address the practice of allowing certain content to bypass data limits, known as “zero rating.”
The FCC attempted to pre-empt any such state laws when it voted to repeal its own net neutrality rules in December, setting up the potential legal clash. Legal experts are unsure how such a dispute will play out.
The Washington bill enjoyed bipartisan support in the state legislature, with dozens of Republican lawmakers voting in favor of the new rules last month. The bill passed with a vote of 93 to 5 in the state House, and 35 to 14 in the Senate.
“This is not a partisan issue,” Norma Smith, a Republican who co-sponsored the bill in the House, said in a statement last month. “This is about preserving a fair and free internet so all Washingtonians can participate equally in the 21st century economy.”
The governors of Montana, New York, New Jersey, Hawaii, and Vermont have signed executive orders banning state agencies from doing business with broadband providers that don’t promise to uphold the principles of net neutrality. But Washington is the first state to pass rules that ban network discrimination.
At least 25 other states are considering net neutrality bills, including California, Illinois, and New York. Both houses of Oregon’s legislature have passed a bill that, like the executive orders, bans state agencies from doing business with broadband providers that don’t follow net neutrality. Governor Kate Brown plans to sign it within 30 days.
The FCC did not immediately respond to a request for comment. The agency’s order repealing its net neutrality rules cites a long history of preempting state law. For example, in 2007, a federal court ruled that the FCC had the authority to block the state of Minnesota from regulating internet phone services like Vonage the same way it regulates traditional landline phone services. But net neutrality advocates point to a 2016 federal court ruling that the Obama-era FCC didn’t have the authority to pre-empt certain state laws concerning municipal broadband.
Marc Martin, a former FCC staffer who is chair of law firm Perkins Coie’s communications practice, says the law on pre-emption is unsettled. But he thinks the executive orders banning state agencies from doing business with non-neutral broadband providers are more likely to withstand legal challenges. “I wonder if anyone will even fight it,” Martin says.
Meanwhile, net neutrality advocates are pushing a Senate proposal that would force the FCC to keep its net neutrality protections. The proposal has garnered the support of 50 senators, including every Senate Democrat plus Senator Susan Collins (R-Maine). But even if supporters of the proposal can get one more Republican senator to vote in favor of the proposal, it would still need to pass the House and be signed by President Donald Trump.
Longtime opponent of net neutrality rules Representative Marsha Blackburn (R-Tennessee) has proposed a bill that would ban broadband providers from blocking lawful content, but would allow throttling and fast lanes while banning states from passing their own net neutrality rules and curbing the FCC’s authority over broadband.
- The end of net neutrality will likely make broadband packages look more like the mobile internet, where favored content providers are exempt from data caps.
- This app can help consumers, watchdogs, and regulators check for potential violations of net neutrality principles.
- Read the WIRED Guide to Net Neutrality.