Colorado Democrats Gung Ho on Net Neutrality Bill, Lifting Broadband Limits

State Sen. Kerry Donovan plans to introduce a net neutrality bill in the Senate soon after session starts Jan. 9, while state Rep. Chris Hansen will rally House members, the two Democrats said. They said it will be similar but not identical to 2018's HB-1312, which would have restricted state USF support to companies that adhere to net neutrality principles. One addition might be enforcement language citing consumer protection statutes, Hansen said.

“Politically, we have the momentum and the support to move forward this year in a way that we didn’t in the past,” said Hansen, who chairs the Appropriations Committee. “We could be through both chambers by March.”

Senate Republicans killed the previous bill, said Hansen, but in 2019, Democrats control that chamber 19-16 and have an expanded 41-24 House majority. Gov.-elect Jared Polis (D) has a tech background and seems “much more interested” in net neutrality than retiring Gov. John Hickenlooper (D), Hansen said. Democratic control of the Colorado Senate makes passage more likely, but “it will still have to be a well-written bill with good policy,” Donovan said. Bill drafters are coordinating with Weiser, who helped draft HB-1312, but haven’t spoken with Polis, the legislators said.

Polis supports state net neutrality legislation but would need to read the bill, said a spokesperson for the governor-elect. Polis supported Democratic open-internet rules when he was in Congress.

Weiser sees room for a state law that’s consistent with the FCC order. The state would be within its rights to restrict USF support to net-neutral ISPs, and to require ISPs to inform customers “in notorious terms” if they plan to stop following open-internet principles, he said. If such rules are challenged, “I feel very comfortable defending them,” he said. Weiser advised against trying to make a state version of “exactly what the FCC chose not to do,” which he said would set up the state “for a direct pre-emption battle.”

An early 2019 priority for Weiser will be joining the multistate AG lawsuit against the FCC’s Restoring Internet Freedom order, he said. A former adviser to President Barack Obama, he disagreed with the commission’s legal reasoning for reversing the 2015 open-internet rules. “This order should be reversed.”

Colorado’s bill may be more legally defensible than the California net neutrality law, which drew lawsuits based on federal pre-emption claims, said Hansen. Colorado relies instead on the state’s role as a market participant rather than regulator, he said. “If we’re going to spend money to subsidize broadband, and buy broadband services, those services should be net neutral.”

Donovan shared the 2019 draft with the telecom industry and hopes to avoid a lawsuit similar to those in California and Vermont, she said. “Sometimes we can find compromise in the middle,” the state senator said. “Even if we disagree, it makes for a stronger policy at the end of the day.” The proposed Colorado law should affirm what industry is already doing, she said.

Broadband

Colorado should enhance broadband support with more funding and rule changes, the state legislators said. The Joint Budget Committee plans to weigh a proposal to add $10 million to the $150 million state broadband support mechanism, said Hansen, a committee member. Donovan wants to update easement rules to speed broadband infrastructure deployment while protecting private property rights, she said. There have been cases in Colorado where property owners hold out for additional compensation when providers try to build broadband, but one person shouldn’t be able to “hold up an entire community,” she said.

Weiser and the legislators supported repealing a 2005 state ban on municipal broadband. “It might be a party-line vote, but I believe it could find success in both chambers,” Donovan said. Many communities feel “hamstringed” by the prohibitions in Senate Bill 152 and don’t know they can escape them, she said. The statute is “not serving any purpose,” and it costs time and money for communities to hold ballot votes to exempt themselves from restrictions, said Hansen. It delays broadband even if ballot initiatives are easily passed, agreed Weiser. “Why would we [have] this annoyance that we don’t need?”

Weiser plans to work closely with Colorado’s broadband coordinator and localities seeking legal advice on municipal broadband, he said. His transition team includes people with broadband experience, including Audrey Danner -- founder of the Mountain Connect Conference -- and Eric Roza, an Oracle senior vice president, Weiser noted. The AG-elect plans to select a chief innovation officer who will look at broadband among other tech issues, he said. Previous state AGs didn’t have a CIO, he said.

Polis sees deficient rural broadband as “a crisis that needs to be resolved,” he said in a November 2017 Summit Daily joint commentary with a county commissioner. Polis supported taking another look at the 2005 state ban on municipal broadband, which “puts too much power in the hands of telecommunications companies.”

Colorado Senate Republicans will work with ISPs "to ensure internet connectivity across all of Colorado while also ensuring that the internet remain free and open for generations to come," a spokesperson said. "Colorado Democrats are leveraging Washington, D.C., talking points while ignoring the strides that we've made in Colorado when it comes to internet access and availability." Last session, lawmakers worked with ISPs and across party lines to enact legislation to "deploy more broadband to more people and at faster speeds than we've ever seen in Colorado," he said. "Now, it seems that Democrats are adopting the mentality that these same providers are working to reduce internet access and speed across the state. It simply isn't true."

Industry will “wait to see” net neutrality or broadband bills before taking a position, said Colorado Telecommunications Association Executive Vice President Pete Kirchhof.