Blue states have unleashed their inner federalist by defying the Trump administration on issues such as immigration and tax reform, but their drive to restore the expiring net neutrality rule may be taking states’ rights too far, experts say.
Governors in at least 10 states have moved to keep net neutrality in place over the objections of analysts who say such plans violate federal pre-emption law and threaten to saddle road warriors with a confusing patchwork of broadband internet services.
Roslyn Layton, a visiting scholar at the American Enterprise Institute, predicted such laws would either fail in court or fall into disuse in states that are unequipped to enforce their newly enacted net neutrality mandates.
“[States] don’t care about the pre-emption laws of the Constitution. They’re just grandstanding for their voters,” Ms. Layton said. “They just want to be able to go to the voters and say, ‘Hey, we stood up to Trump and the FCC, and we have these rules.’ “
None of that has stopped blue states eager to send a message to the Federal Communications Commission, which voted 3-2 in December to dismantle the Obama administration’s 2015 Title II policy, known as net neutrality.
The FCC plans to announce the date when net neutrality officially expires, but fears that the Obama-era policy would end Monday helped spur Rhode Island Gov. Gina Raimondo, a Democrat, to sign an executive order with legislation pending.
“A free and open internet is essential to our democracy and economy,” Ms. Raimondo said Tuesday. “Rhode Island was founded on a principle that there is a place here for everyone. By protecting a free and open internet in our small state, we’re renewing that promise.”
The FCC order specifically pre-empts states from freelancing, prohibiting “any state or local measures that would effectively impose rules or requirements that the FCC has repealed or decided to refrain from imposing in this order.”
States have moved to work around the ban with language that applies only to internet service providers with state contracts, relying on the market participant doctrine.
Such companies would be prohibited as a condition of their contracts from blocking legal content, slowing down access, charging more for improved service and otherwise violating net neutrality principles.
“Nobody is making any company bid to do doing business with the state of Colorado,” state Rep. Mike Weissman, a Democrat, said during committee debate on the legislation.
That “tricky workaround” is still unlikely to pass legal muster, said Ms. Layton, who predicted that the courts would see through it because “the FCC’s pre-emptive authority still applies.”
So why try? For progressives, net neutrality has become a rallying cry expected to reap benefits for Democrats at the ballot box.
“It’s a smokescreen,” Ms. Layton said. “The purpose of all this is symbolic politics. They’re just grandstanding for their voters.”
Governors in at least three blue states — Washington, Oregon and Massachusetts — have signed legislation restoring net neutrality to fanfare from their liberal constituents.
Another six states — Hawaii, New Jersey, New York, Montana, Vermont and Rhode Island — have done the same through executive orders, according to the National Conference of State Legislatures.
“We enter a very new era because of the decision that was made at the federal level to remove open internet net neutrality protections at the FCC, and that has left it to different states to respond in different ways,” said state Rep. Chris Hansen, a Democrat who co-sponsored the Colorado bill.
Senate Republicans killed the Colorado measure in committee Monday. Hours later, Democrats moved to leverage the issue with a fundraising appeal.
“The internet should be open and free, not ruined by ISPs like Comcast throttling, censoring, and imposing new fees or traffic tiers,” said Colorado Democrats’ digital director Ian Belter. “Republicans don’t believe that. We need your support to fight for net neutrality.”
California is poised to become the next state voting to restore net neutrality. A bill sponsored by Democratic state Sen. Scott Wiener cleared its first hurdle April 17 by winning passage in a Senate committee.
“In California, we can lead the effort to clean up this mess and implement comprehensive, thorough internet protections that put California internet users and consumers first,” Mr. Wiener said in a statement.
The legislative push comes after 23 state attorneys general, led by New York Attorney General Eric Schneiderman, filed a January lawsuit accusing the FCC of violating the Administrative Procedures Act with its “arbitrary and capricious” change to policy.
Broadband providers have argued that the issue should be settled at the federal level, and even some progressives agree.
E. Faye Williams, president and CEO of the National Congress of Black Women, which backs net neutrality, argued that state action only creates a “patchwork that will leave consumers holding the bag” because their plans may change when they cross state lines.
She called for the movement to get behind a “real, permanent, comprehensive net neutrality law” by pushing for congressional action.
“Net neutrality is no good if it protects you at home,” Ms. Williams said in a March 30 op-ed for the San Jose Mercury News, “but not when you come to Washington to march.”