Posts Categorised: net neutrality

A bill that reinstates protections repealed by the FCC passed both houses of the state’s legislature

OLYMPIA, Wash. — Washington state ratified its own net-neutrality protections on Feb. 27, the first state to do so in a direct rebuke to Washington, D.C.

A bill that reinstates protections repealed by the Federal Communications Commission in December passed both houses of Washington state’s legislature. It now heads to the governor’s desk to be signed, according to .

Washington State will forbid broadband companies from blocking or slowing lawful internet traffic or selling fast lanes at a premium. It also requires broadband companies to publicly disclose their business practices “sufficient for consumers to make informed choices,” according to the same article.

Of course Washington state’s net neutrality law is likely to face legal challenges. The FCC’s official repeal of net neutrality, published in the Federal Register last week, preempts states and local jurisdictions from passing de facto net neutrality laws. The FCC has indicated that the new rules preempt any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order, including laws that would require disclosure of business practices from internet providers, like the one just passed by the Washington state legislature.

Washington state Attorney General Bob Ferguson is also preparing a legal challenge to the FCC’s decision, as part of a coalition with attorneys general from 21 other states and the District of Columbia.

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Publication of the final text of the decision signals that lawsuits challenging the rule rollback can be filed

WASHINGTON — It’s official. Thursday, Feb. 22, was the red letter day for court and congressional challenges to the FCC’s Dec. 14 decision to roll back FCC network neutrality rules and reclassify ISPs out from under Title II common carrier regs.

The FCC has delivered the final Restoring Internet Freedom order to the Federal Register, which has just signaled it would be publishing that order on Thursday.

Publication of the final text of the decision signals that lawsuits challenging the rule rollback can be filed, and triggers the FCC’s determination of the date when the rules go into effect — challenges can begin even before that effective date. That doesn’t necessarily mean the rules will go into effect soon. The FCC said in the order that it would not release an effective date until the Office of Management and Budget approves the new reporting requirements of the enhanced transparency rules and that, too, has been published in the Federal Register, which has not happened yet. That reporting requirement is central to enforcement of net neutrality in the absence of bright-line rules, since the Federal Trade Commission and Justice Department will rely on what ISPs say they are doing to decide whether that is unfair or deceptive or anticompetitive.

Publication also triggers a 60-legislative-day deadline for Congress to vote on a Congressional Review Act (CRA) resolution, pushed by Democrats and net neutrality activists, to nullify the decision. That is a long shot bordering on simply a shot across the vow in advance of the legal challenges to come, and a way to keep the issue alive for Democrats who see it as a midterm election issue.

The FCC had already sent copies of the order to House and Senate, but the CRA clock does not start until Register publication, according to Hill and FCC sources.

On Dec. 14, in a politically divided 3-2 vote (On Dec. 14, in a politically divided 3-2 vote, the FCC chairman Ajit Pai-led Republican majority eliminated the rules against blocking, throttling, paid prioritization, as well as the “general conduct standard,” which gave the FCC a way to potentially prohibit anticompetitive or discriminatory ISP conduct that was not covered by the rules.

Importantly, it also reclassified ISPs as Title I information services, removing them from the common carrier regulatory bucket and giving chief oversight of ISP conduct to the Federal Trade Commission under its unfair, deceptive and anticompetitive authority.

The item restores the FTC’s authority over broadband regulation, and adopts a transparency rule that requires ISPs to let the government and web users know how they are managing their networks and what business practices they are using, which the FTC can enforce if those practices are unfair or deceptive or anticompetitive, and the Justice Department can enforce if they violate antitrust laws.

That means ISPs could block or throttle, though they have promised not to, and engage in paid prioritization, which some ISPs may want to try as a way to differentiate their services.

The FCC also asserts the ability to preempt state or local attempts to create their own net neutrality laws or regulations.

The Dec. 14 vote was a long-sought victory for ISPs, who argue that the Democratic-led FCC’s 2015 reclassification of internet access as a Title II common-carrier service subject to those bright-line rules was regulatory overreach that depressed investment and innovation to no pro-consumer purchase.

Among net-neutrality activists, who had pulled out all the stops in the last days to try to head off the vote, it was billed as a death blow to the open Internet by a former Verizon lawyer (FCC chair Ajit Pai) in service of the Trump Administration and communications monopolies looking for even more power.

Which side will ultimately prevail is now in the hands of the Congress and the courts, the latter just the latest in a series of trips over the past decade.

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More States Insist on Net Neutrality

Do Hawaii and New Jersey have the right to do so?

WASHINGTON — Hawaii and New Jersey are the latest states to decree that all state agencies should only do business with internet service providers agreeing to follow net neutrality principles, joining Montana and New York. Hawaii, New Jersey and New York are among the 23 states where the attorneys general are suing the FCC for repealing net neutrality rules put in place in 2015.

One important question is like the 800 lb gorilla in the room though: do states have the right to create their own Internet policy? Markham Erickson, the telecom attorney representing Incompas , the industry association for competitive communications carriers, said the FCC may have “backed itself into a corner on the states’ rights issue,” according to . While the FCC said individual states couldn’t override federal policy, it also renounced its own authority to impose net neutrality provisions, which would appear to leave the door open for states to impose them if they so choose.

In Congress, Representative Marsha Blackburn (R-Tenn.) has introduced a bill banning blocking and throttling of Internet traffic, but leaving in place the possibility for paid prioritization, and maintaining the categorization of ISPs as Title 1 information service providers, which are regulated by the FTC rather than the FCC. Blackburn also calls for continued limitations on the FCC to preempt state net neutrality laws, according to the same article. Representative Mike Coffman (R-Co.) says he will introduce a net neutrality bill that would go further than Blackburn’s proposal: Coffman wants to ensure blocking, throttling and paid prioritization are all illegal, and he wants to create a compromise in how ISPs are regulated that would keep them under FCC oversight, but not subject them to Title II governance.

The FCC’s “Restoring Internet Freedom Act” will likely get published in the Federal Register in the coming weeks, after which there will be a 60-day period before the order goes into effect. Any lawsuits are likely to take one to two years before they’re granted a decision by a federal court, and the party which disagrees with the outcome will likely take the issue to the Supreme Court. 

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