States defy FCC repeal of net neutrality

States are pushing their own net neutrality laws and rules in defiance of the Federal Communications Commission’s (FCC) repeal, heightening the possibility that supporters will be waging another legal battle over the popular Obama-era regulations.

Washington and Oregon have already passed their own laws to fill the void left by the FCC’s repeal, and California appears to be close behind after the state Senate passed a net neutrality bill on Wednesday.

A total of 29 states have proposed their own open internet legislation, according to Gigi Sohn, a fellow at Georgetown Law who’s been tracking the initiatives.

And five Democratic governors have gone with another tactic: issuing executive orders that prohibit the state from doing business with any broadband company that violates the principles of net neutrality.

The FCC’s repeal order included a provision preempting states from creating their own net neutrality rules, and this movement could lay the groundwork for a court battle over states’ rights to implement their own consumer protections.

A potential industry lawsuit against the states that have passed net neutrality laws could hold some promise for net neutrality supporters, says Marc Martin, a communications and technology lawyer at Perkins Coie.

“It’s not a slam dunk” despite the preemption clause, Martin said. “It’ll be interesting, I think that is one of the more vulnerable parts of the repeal overall.”

If companies like AT&T and Verizon do decide to sue California or Washington, it would open up yet another front in the fight over the net neutrality repeal, which has already prompted a lawsuit from a coalition of state attorneys general and consumer groups, as well as a Democratic legislative campaign in Congress to preserve the popular rules.

Even if some of the efforts face long odds of succeeding, Democrats see plenty of reasons for fighting back against the repeal.

Numerous polls have shown that the rules are extremely popular, and supporters warn that leaving a regulatory void over the broadband industry could give providers the ability to abuse their power over internet access by discriminating against certain sites or prioritizing ones with which they are affiliated.

The California bill that’s being considered by the state’s assembly was written by Sen. Scott Wiener (D), who says that state legislators now have a responsibility to regulate the industry and preserve an open internet.

“The FCC’s action left a huge void with real-life ramifications in terms of the [internet service providers] being able to pick winners and losers on the internet, which is exactly what net neutrality prohibits,” Wiener said in a phone interview with The Hill.

Wiener’s bill would put in place the restrictions against blocking sites, throttling connection speeds and creating so-called internet fast lanes that were in the 2015 order. But it would also go a step further in banning certain forms of “zero rating,” a practice by which wireless providers let consumers use certain services without it counting against their data limit. The legislator argues that zero rating is used to steer consumers away from smaller competitors.

The California state Senate passed another net neutrality bill in January, but supporters say that Wiener’s is more comprehensive. Sohn, who served as an adviser to former Democratic FCC Chairman Tom Wheeler, says it’s the strongest bill being considered at the state level.

“If it passes the general assembly, it automatically becomes the de facto standard by which every other net neutrality law is measured, which is why the [internet service providers] are so desperate to block it,” she said.

The industry and most Republicans have also been pushing for Congress to pass a replacement to the FCC rules that would codify some of the net neutrality principles and put an end to the uncertainty that broadband providers are facing now that they’ve pushed through the repeal.

“If the states prevail, you’re going to have a patchwork quilt of regulations,” said Martin. “It’s just calling out for a federal solution.”

But those who supported the 2015 rules don’t believe that federal legislators can come up with protections that go far enough.

“With this Congress and this president, my confidence level is not high,” Wiener said. “I would love to have one uniform, robust federal standard protecting net neutrality, but given that the FCC has left a void, the states have to fill it.”

--This report was updated at 3:32 p.m.