Net Neutrality Bills Near Key Votes in Maryland, Connecticut

Expect Maryland’s House Economic Matters Committee to vote “in the next few days,” emailed the panel’s Vice Chair Kathleen Dumais (D). “I don’t think we should move forward with” the bill because it violates the U.S. Constitution’s supremacy clause, she said. Enacting a Maryland law is tough even with the court decision and this year's addition of a Senate sponsor, said House sponsor Kirill Reznik (D). Previous net neutrality bills failed in 2018 and 2019. The delegate said he wrote 2020’s HB-957 to be more aggressive, and welcomes ISP lawsuits.

Connecticut’s Joint Energy and Technology Committee should vote by month’s end on SB-5, said Duff. It has a March 24 deadline and the legislative session ends May 6.

Net neutrality remained in New York’s budget bill after Gov. Andrew Cuomo (D) released 30-day amendments last month. A-9508 and S-7508 also include 5G small-cells language (see 2003040013). Those topics could come up at the Senate Energy and Telecom Committee’s Tuesday meeting, said New York Public Utility Law Project Executive Director Richard Berkley. Chairman Kevin Parker (D) didn’t comment Friday.

ISPs suing Vermont and California don’t worry Duff, he said. He said it’s inconsistent for broadband service providers to challenge state net neutrality laws while claiming they follow rules. Connecticut lawmakers couldn’t pass a previous net neutrality bill because people wanted to wait for the D.C. Circuit, the Democratic Senate leader said. Reports that Verizon throttled firefighter data in California during wildfires increased support, he said.

“The industry has every right to get a judicial review, and we need to be willing and able to continue to fight to show them that this is an issue we care about,” said Maryland’s Reznik. The sector can’t keep saying it won’t violate net neutrality while simultaneously arguing against rules in courts and state legislatures, he said. “Eventually, they will have to admit that anti-neutrality measures will help make them more money and that they want to use them,” Reznik said. “As soon as that happens, they lose in the court of public opinion. The more we get them testifying ... the more likely someone will say something they don't want.”

“States can take a lot of comfort in moving forward” after Mozilla, said American Civil Liberties Union-Connecticut Policy Counsel Kelly McConney Moore. The ruling didn’t preclude or endorse ISP suits against state bills, she said. Vermont and California got sued and agreed to freeze their laws before the D.C. Circuit ruled, and their laws remain unenforced for “litigation posture” reasons, not because they think “their laws still are unenforceable in the wake of the Mozilla decision,” said the ACLU official: it wouldn’t be a problem for new state laws.

"The D.C. Circuit did not clear a path for states to impose their own net neutrality mandates," emailed an NCTA spokesperson. "The court made clear in its Mozilla decision that, although the FCC could not preempt all state broadband regulation in advance on a blanket basis, the conflict preemption doctrine ... continues to apply and provides a basis to invalidate any specific state law that conflicts with federal law." If a state law treats broadband providers as common carriers -- contrary the information service classification upheld by the D.C. Circuit -- or tries to "reinstate requirements or prohibitions that the FCC specifically rejected," the spokesperson said, "such a state law is almost certain to be invalidated."

“Smaller ISPs have no incentive to block, throttle, or engage in anticompetitive paid prioritization, and to the best of our knowledge, none are engaging in such practices,” emailed an ACA Connects spokesperson. The cable group that’s part of ISP suits wants Congress to act because the internet is national, he said. USTelecom and CTIA referred us to their letters and testimony opposing state bills.

Connecticut

Support appeared to outweigh skepticism at the Connecticut joint committee’s Feb. 27 hearing, with division “generally” falling along political lines, Duff said. He disagreed with ISP witnesses who argued Mozilla didn’t invite state action (see 2002270041). Duff didn’t know if Gov. Ned Lamont (D) supports the bill. Lamont's office didn’t comment.

ISPs follow net neutrality principals “for the most part,” said the committee’s ranking Senate Republican, Paul Formica, in a statement: “New court decisions may change how states handle net neutrality going forward.” Formica is working with the committee’s Democratic chairs “to make sure a consumer protection bill is drafted on net neutrality, should that be the direction the legislature decides to go.”

Republicans raised “a lot of concern about potential litigation,” noted McConney Moore. She had supported SB-5 at the hearing. When the bill came up in 2018, many were concerned about “running afoul of the federal government,” she recalled now. Last year’s Mozilla decision increased the appetite to pass a bill, she believes.

Democrats made clear the bill is a priority this session, emailed Connecticut acting Consumer Counsel Richard Sobolewski, who also testified. “The vote is likely to follow party lines.”

Maryland

Dumais raised concerns about Maryland’s bill at a Feb. 26 hearing. She asked why the state should “go out on a limb” before court decisions on other states facing litigation by ISPs (see 2002260057).

"Delegate Dumais brings up some valid points, and Maryland does have a tendency to be more cautious than some other progressive states,” Reznik emailed. “It is a concern that we need to address as she is the Vice Chair of the Committee, and if she isn't comfortable moving forward, clearly we will have a problem getting it passed.”

A Senate version would remain, SB-1005 by Senate Finance Committee Vice Chairman Brian Feldman (D). The 2018 bill passed the House but died in the Senate, and this is the first year there's a Senate bill. “Having [Feldman] anchoring on the Senate will benefit us greatly,” said Reznik. “At a minimum, we get two bites at this particular apple.” The senator didn’t comment.

Reznik’s 2018 and 2019 bills were “safer,” relying on the state’s procurement authority and local jurisdiction to regulate cable, he said. The delegate didn’t know how the D.C. Circuit case would turn out, and he thought he “could get more traction with a more moderate bill,” Reznik said. “Clearly, that hasn't worked.” Free Press, PEN America and others helped Reznik write a bill more like what California passed, he said. “It took longer to get the wording right, and I'm afraid that as a result, it possibly took too long to get the coalition together, but we will see how that works.”

Maryland’s Republican executive could be another obstacle. Gov. Larry Hogan “hasn’t taken a position,” a spokesperson emailed. Reznik’s “guess is he won't support it,” the delegate said. “Even if he does, it's not a top priority for him.”