Local Net Neutrality Action Could Rise in 2020

Municipalities threatened to fight after the FCC’s 2017 order (see 1712260026). Newark, New Jersey, Mayor Ras Baraka (D) pledged his city’s municipal broadband network will remain net neutral. In Tennessee, Chattanooga’s Electric Power Board said it would uphold net neutrality on the city’s muni broadband network. More than 100 mayors signed Free Press’ open internet pledge begun in April 2018, including Baltimore's, St. Louis' and San Francisco's. But the cause’s website, mayorsfornetneutrality.org, now is plastered with online poker marketing.

Look for local net neutrality announcements in April, May and June, said International Municipal Lawyers Association Director-Legal Research Negheen Sanjar. Many cities are in “research phase” and by the middle of next year will be more prepared and have a better sense of what actions their states may take, she said. “Quite a few of our members are interested in creating their own net neutrality regulations, but part of the barrier to being able to do that is state-based preemption." States may stop local action, or cities are waiting to see if the state makes a net neutrality law before they act individually, she said.

Many municipalities were waiting for the legal resolution of the Mozilla case at the U.S. Court of Appeals for the D.C. Circuit, said Sanjar. That decision came in October, and it takes six months to a year to write a local law or policy, she said. “It wouldn’t make sense … to put this effort into creating these policies and to then have it be pre-empted” by the FCC and upheld by the court, she said. Blue local governments are more likely than red to act, she said: If most major cities act on net neutrality, it would influence suburban and then rural localities to follow.

The mayors’ coalition still exists, now with about 150 mayors, emailed Free Press Senior Director-Strategy and Communications Timothy Karr. “The website was used for the remainder of 2018 following the launch and then we moved on to organizing mayors via email and other communications; unfortunately, it seems we now have a squatter on the url.” The D.C. Circuit decision, he said, “has put more emphasis on local-level action to safeguard the open internet, which is of particular relevance to mayors.”

"There's been a lot of exploration at the city level about what can we do," said CTC Technology and Energy President Joanne Hovis. "Where I've seen real activity is where cities are working on broadband strategy where they are bringing resources and assets to the table and working with the private sector." Those municipalities can say they want to work with only net-neutral private partners, said Hovis, who consulted for San Francisco and Tacoma on such projects. “It's a model that others may follow.”

Tacoma

Net neutrality is required in Tacoma’s agreement with Rainier Connect to operate extra capacity on the city’s hybrid fiber coaxial (HFC) network. The City Council OK’d the partnership last month. Rainier is expected to assume control in April, said Chief Deputy City Attorney Chris Bacha. The contract is for 20 years, plus two optional 10-year extensions.

Tacoma “rejected any potential operators that would not agree to abide by net neutrality principles,” emailed Bacha. “The City ultimately received two excellent proposals from Wave Broadband and Rainier Connect that included adherence to principles of net neutrality as well as the other 11 policy goals.” So, while Tacoma “did limit its options, this did not preclude the City from finding an operator,” he said.

Neither FCC net neutrality rules nor litigation played into Tacoma’s decision, Bacha said. “Because this is a contractual, rather than a regulatory requirement, any rules adopted by the FCC would not extend to the City's authority in its proprietary capacity to require compliance with net neutrality principles.” Development of Washington state’s net neutrality law wasn’t a factor, he said.

San Francisco

San Francisco planned to require net neutrality as part of a private-public broadband partnership, but the project went on hold after the death of its champion, Mayor Ed Lee (D), said Hovis. The city held a request for qualifications but not for proposals for “FiberSF,” then suspended the project in summer 2018, emailed Department of Technology Policy Analyst Brian Roberts. “The project had many new elements not previously attempted which made it very challenging as well as changes in the communications landscape not considered when the project began.” The net neutrality requirement wasn’t one of the challenges, which “were more on the business model and construction side,” he said.

“While we remain supportive of net neutrality, San Francisco has no current plans related to net neutrality at the local level,” said Roberts. He's current president of NATOA, as was CTC's Hovis 2011-2013.

“We are amidst a sort of ‘wait and see’ period,” where ISPs “are being carefully monitored by policymakers and regulators to see how they will behave now that net neutrality has been repealed,” emailed University of Pennsylvania communications school doctoral candidate David Berman, co-author of After Net Neutrality: A New Deal for the Digital Age. “Net neutrality action will take on renewed importance for local policymakers if any of the major ISPs are caught engaging in widespread blocking or throttling.”

Public Broadband

Many muni broadband networks tout their neutrality; another approach could be requiring neutrality as part of government procurement, said Hovis.

Public broadband is part of the battle, said Penn’s Berman. “These networks are often built not only to offer a higher speed and lower cost alternative to the broadband plans offered by the telecom giants, but also because they are structurally more likely to support net neutrality." He cited their lack of shareholders other than the public at large.

Restricting procurement to ISPs that follow open-internet rules is something cities are “more able to do because they have more control over it,” Sanjar said. Local procurement typically isn’t pre-emptible by the state, she said.

Local procurement policies might have a better chance than direct rules of surviving challenge, said Information Technology and Innovation Foundation Broadband and Spectrum Policy Director Doug Brake. ISPs are already net neutral, he said. “As long as cities didn’t try to jump in and police the business models on an ad-hoc basis, I would think that no blocking, no throttling would be a pretty easy contract to ascent to.” Having individual neutrality rules for every city is bad policy, said Brake, who remains optimistic that political compromise on a Telecom Act update addressing broadband is possible. It’s getting harder to make the case for net neutrality rules with increases in bandwidth and no “egregious violations,” he said.

FCC pre-emption authority is weaker when towns restrict their own networks instead of private ISPs, emailed Free State Foundation President Randolph May. “Most municipalities have more important matters to address” than net neutrality, though it could happen in “certain liberal bastions,” he said.

USTelecom President Jonathan Spalter seeks a national framework, said a spokesperson, referring us to his Oct. 1 statement after the Mozilla D.C. Circuit ruling. The FCC and NCTA didn’t comment.