NY, Mass. Democrats Go on DC Circuit’s Net Neutrality ‘Green Light’
New York lawmakers aim to coordinate next moves on net neutrality after the U.S. Court of Appeals for the D.C. Circuit ruled Oct. 1 that FCC 2017 net neutrality deregulation doesn’t stop state policies (see 1910010018). However, two Democratic bill sponsors interviewed this week disagreed how cautiously to proceed. Two Massachusetts net neutrality bill authors agreed the D.C. Circuit ruling frees states to act.
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An FCC spokesperson emailed: “While we are still studying the decision and considering next steps, it is important to note that the court’s decision explicitly left the door open to the preemption of state laws in conflict with the Restoring Internet Freedom Order.”
New York legislators with net neutrality bills “plan on getting together to talk through this and to see if we can find common ground on finding a way forward,” Internet & New Technologies Subcommittee Chairman Clyde Vanel (D) told us. Democrats with bills in 2019 included Assembly members Vanel, Kevin Cahill and Patricia Fahy and Senate Energy and Telecommunications Chairman Kevin Parker and Sen. Brad Hoylman. The Assembly passed Fahy’s bill in June restricting state procurement (see 1906050066); it didn’t get a vote in the Senate. The next session starts the second week of January.
“We have to be careful when we’re dealing with how we regulate information and business online and how we regulate the internet,” cautioned Vanel, whose 2019 bill would have required net neutrality by pole attachers and state contractors. “Sometimes when you fix something, you break more things.” One alternative to passing a state law could be for a New York agency, such as the Public Service Commission or Department of Financial Services, to make open-internet regulations, he said.
Vanel would rather Congress make a federal net neutrality law, but since prospects for that look dim, New York “should act to make sure we have an open and free internet.” It should be “narrowly tailored,” he stressed. “I am cautious to have a patchwork of regulations around the country when we’re dealing with the internet,” particularly with “courts and a federal agency confused about whether or not the internet … is information service or telecommunications service.”
“We can’t approach this issue with trepidation,” disagreed Hoylman, a state senator who plans to spend the next two months before session building support for a comprehensive proposal modeled after California’s net neutrality law. “I don’t know why we’d want anything less.” State lawmakers showed caution by waiting for the D.C. Circuit ruling, he said. “We have to take a hands-on approach because there’s too much at stake.”
The D.C. Circuit decision was a “tremendous boost to our efforts,” Hoylman said. “There’s nothing to put the brakes on legislation that is potentially fraught with legal issues [like] a case as complex as the Mozilla one.” Policy experts advised New York members to wait for the D.C. Circuit’s conclusion, he noted: “We did so, and now … we have a green light to move ahead.”
Some Massachusetts legislators also see the court decision as a signal to hit the gas. The Joint Committee on Telecommunications, Utilities and Energy weighed multiple bills last week (see 1910110012). State senators unanimously passed a bill in 2018; it stalled in the House.
The court ruling made the pre-emption issue “a lot clearer,” and that could lead to more support, Sen. James Eldridge (D) told us. “There were a lot of questions about whether states could take action,” with many ISP lobbyists saying at hearings and in letters that state action was “wrongheaded and could be struck down.”
Massachusetts lawmakers have until July 31 to pass a bill in their two-year session, said Eldridge, who expects a proposal won’t come up for vote until next year. The senator’s measure would require ISPs to adhere to net neutrality rules and ban state contracts with those that don’t. Given the court ruling, he would be “really disappointed” with a bill that merely restricted procurement: “States really need to show leadership.”
State Rep. Andy Vargas (D) “heard several concerns about federal preemption” when he introduced a state procurement bill, he emailed. “The courts have now ruled in favor of the states. Now that states have the go ahead, we feel renewed momentum to codify a free and open internet across the Commonwealth.” Vargas will work with the joint telecom committee on the best approach, he said. “ISPs tell us they agree with net neutrality, but only support federal action,” said Vargas. “We all know there’s not much of any consumer protection action happening in Washington today. That’s where historically and presently, states have stepped up to the plate to protect our constituents.”
Not all agree the D.C. Circuit settled the matter. With appeal of the Mozilla decision to the Supreme Court possible, California and Vermont net neutrality laws remain on hold (see 1910020028). Senate Commerce Committee Chairman Roger Wicker, R-Miss., Thursday predicted more Democratic participation in a bipartisan net neutrality working group (see 1910240070).