Is net neutrality gone forever? Maybe not. Washington Governer Jay Inslee (a Democrat) signed the first state law preventing internet service providers (ISPs) from blocking or slowing down online content in March. When it goes into effect June 6, the consumer protections mandated in the 2015 rules on net neutrality that the Federal Communications Commission (FCC) voted to lift late last year will apply again in his state. Similar laws have been introduced in more than 20 states, and the governors of New York, Hawaii, New Jersey, Vermont, and Montana have signed executive orders imposing regulations on ISPs in their states.
The order signed by Montana governor Steve Bullock in January prohibits any ISP with a state government contract from blocking or charging more for faster delivery of websites to anyone in the state. Bullock and his advisors say that Montana’s right to regulate state contractors supersedes the FCC’s new rules, despite provisions explicitly prohibiting states from undermining the lifting of federal net neutrality.
The FCC dismantled the 2015 rules that regulated how internet providers handle data on the theory that restrictions kept broadband providers like Verizon and Comcast from investing in new technologies. Despite evidence that hundreds of thousands of anti-net-neutrality messages submitted to the agency during the public comment period last year came from bots, the FCC went ahead with rescinding the designation of ISPs as common carriers subject to the same rules as other utilities.
Consumer groups and technology companies worry that those providers will start charging for fast service. Because the new FCC rules specifically prohibit states from creating their own rules on the topic, the governors’ executive orders and new laws such as Washington’s will almost definitely end up being taken to court.
But the FCC will also be appearing in court as a defendant—in mid-January, 22 state attorneys general filed a lawsuit calling the FCC’s action a breach of federal law. California, Massachusetts, Oregon, Maryland, and Kentucky were among the states suing on the basis that internet access is a utility and should be regulated just like power and water services. New York Attorney General Eric Schneiderman said in a release, “The repeal of net neutrality would turn internet service providers into gatekeepers—allowing them to put profits over consumers while controlling what we see, what we do, and what we say online.”
Mozilla, the nonprofit organization that develops the Firefox web browser, also sued, saying the FCC rules will hurt innovators and entrepreneurs by forcing them to pay extra to avoid having traffic to their sites slowed or blocked, while benefiting large ISPs. Public interest groups Free Press, Open Technology Institute, and Public Knowledge filed lawsuits as well. Even private companies are in on the action: Etsy, Foursquare, and Kickstarter filed a suit in March.
Meanwhile, congressional Democrats announced that they’re filing to discharge a petition for the Congressional Review Act to reinstate net neutrality rules next week, on May 9—a date that’s being built up as a massive day of action in support of net neutrality. The Congressional Review Act allows Congress to reject rules enacted by agencies through a majority vote within 60 days of their publication. With all 49 members of the Democratic caucus and Maine Republican Susan Collins on board, the resolution only needs one more vote to pass the Senate.
Although it stands little chance of passing in the House (and almost no chance of being signed by the president even if it did), the vote allows Democrats to make their Republican colleagues go on the record as rejecting net neutrality—a position their constituents won’t be happy about as they head in to the midterm elections.