Democrats Seek NY Net Neutrality Action Via Charter Dispute; PSC Says Rules Applicable

With New York net neutrality bills seemingly stalled until next year, 25 Assembly Democrats urged PSC action. “Any contract with a new" ISP to replace Charter should "include a provision requiring the new ISP abide by net neutrality principles that were struck down by the" FCC late last year,” they wrote in an Aug. 6 letter to PSC Chairman John Rhodes. “The Public Service Commission is in a unique position at this juncture to enhance and protect broadband access, especially for the underserved communities that are the most vulnerable to the impacts of net neutrality’s repeal.”

“New York State is committed to net neutrality,” which is why Gov. Andrew Cuomo (D) earlier this year signed an executive order restricting state agencies from signing contracts with ISPs that don’t follow open-internet principles (see 1801240041), the PSC spokesman emailed us Thursday. Because of that order, “Charter has signed both a certification accepting net neutrality principles across the state, and signed a contract extension with [the Office of General Services] agreeing to net neutrality for state services. Any successor provider will also need to fully comply with the Governor’s Executive Order.”

The PSC should require Charter to follow net neutrality principles if it lets the company stay after negotiations, said Assemblymember Patricia Fahy (D), the first signature on the letter to the PSC, in an interview. While the letter referred to rules for a Charter successor, lawmakers intended that it also apply to Charter in the case of a settlement, she said. Executive orders can be overturned by a later governor, said Fahy, noting New York has a primary next week. PSC action would be more permanent and could be done sooner than passing a bill, the lawmaker said. That all 25 signers are Democrats shows how partisan net neutrality has become in New York, she said. "Shocking" reports of Verizon throttling California firefighters' service (see 1808240039) should build momentum for net neutrality, said Fahy. "We'll gain bipartisan support again."

State Sen. Brad Hoylman (D) supports PSC action as proposed by the assemblymembers for Charter or a replacement ISP, he said in an interview. Hoylman has a net neutrality bill that aims to mirror comprehensive rules passed by California and hopes to move it forward post-election. The EO doesn't carry force of law, and while a "good start," didn't go far enough because it applies only to government entities, he said. "We need California-style net neutrality in New York. Nothing short of that will be sufficient."

PSC Condition

A PSC condition in a Charter settlement could bolster New York’s net neutrality policy.

That's because the EO applies to government contracts and a PSC rule would more directly cover consumers, said New York Public Utility Law Project Executive Director Richard Berkley in an interview: “Having both is better.” Settlement with Charter seems more likely than replacing the MVPD, and the commission could condition the operator staying in New York upon its “voluntarily following all or some of the 2015 net neutrality” rules, he said.

“I don’t like [the idea], but I’m not shocked by it,” said Free State Foundation President Randolph May. It’s better for the PSC to settle than replace the cable provider, said May, who opposed the 2015 FCC rules. “It wouldn’t surprise me if, in the context [of] such negotiations with Charter, the PSC requested as a condition that Charter adhere to certain net neutrality conditions. And it wouldn’t surprise me if, with its proverbial back against the wall, Charter ‘volunteered.' ... This is not unlike the abuse of process that occurs in the context of review of mergers by regulatory bodies.”

“The PSC can put whatever relevant conditions on a license to operate that it deems are in the public interest,” emailed Public Knowledge Senior Counsel John Bergmayer, who supported the 2015 rules. PK supports open internet-related conditions, though it prefers rules that apply to all ISPs, he said.

“I guess it’s conceivable that Charter agrees to baseline net neutrality principles” as part of a likely PSC settlement, “but the Assembly letter is more politics than anything,” emailed Information Technology and Information Foundation Director-Broadband and Spectrum Policy Doug Brake.

Charter declined comment. Under PSC extensions, it has until Monday to seek rehearing of the July 27 actions against the cable company that included rescinding OK of its Time Warner Cable acquisition, and until Oct. 9 to submit a plan to transition services to a new provider (see 1808230024).

Settlement talks probably are happening, with Charter more likely to stay, agreed Brake and Berkley. “That the PSC offered Charter more time to propose a plan shows the two are in productive talks to develop an achievable buildout commitment, and in any event indicates a desire to keep this out of court,” said Brake.

California ‘Tsunami’

Brown (D) should enact net neutrality, urged Democratic state legislators at a Thursday news conference livestreamed from Los Angeles. Brown has until Sept. 30 to sign or veto SB-822, passed Aug. 31 (see 1809040045).

Signing is a chance to start a “tsunami that starts in California and goes state by state,” said Assembly Communications Committee Chairman Miguel Santiago (D). Brown could be the fourth governor to sign a net neutrality bill after counterparts in Washington state, Oregon and Vermont.

While many states that had such bills wrapped up 2018 sessions, some legislatures are year-round, including Illinois, Massachusetts, New Jersey, New York and Pennsylvania, said National Regulatory Research Institute Senior Research Associate Kathryn Kline. She tracks net neutrality state bills. “We are particularly interested in Massachusetts and New York, where there’s been a lot of press coverage,” she said.

Passing a New York law looks unlikely this year. “The fate of our bill is largely dependent on which party controls the state Senate in January,” a Fahy spokesperson said. A Democratic takeover would provide greater momentum for the New York effort than California enacting its bill, noted Berkley.

Massachusetts legislative rules allow only noncontroversial matters during informal sessions between now and year-end, said Senate Majority Leader Cynthia Creem (D) staff attorney Sarah Chase. “It remains very unlikely that any further action will be taken on net neutrality before then.” Creem plans to refile in January if not, she said.