States dig their heels in over FCC’s net neutrality reversal

The ink isn’t even dry on the FCC’s new rules to reverse net neutrality, but the opposition has already started making waves across the US.

It was not unexpected that associations or public interest groups would start the judicial steamroller, but several states have stepped forward to create their own regulatory framework to preserve net neutrality. New York, Washington, Rhode Island and California are the protagonists for the moment, but it wouldn’t be too unusual to see more coastal, left-leaning states make their case as well.

In California last week, Scott Wiener, a member of the California State Senate, introduced Senate Bill 822 which would grant continuation of the Public Utilities Commission regulatory power over the ISPs. Washington kicked off its own process back in December, immediately after the initial vote at the FCC. Brad Hoylman, of New York’s State Senate in Manhattan’s 27th district, has been throwing punches for weeks, and it won’t be too long before more Democratic heavy-weights make noises.

“We must keep the internet free and open to everyone: from the students writing their theses to the consumers purchasing their holiday gifts to the grandparents talking to their family over skype all the way to the start-up company operating out of its founder’s basement,” said Senator Charles Schumer for New York, who also serves as the Senate Minority Leader. “The resolution I am announcing today would press ‘control, alt, delete’ on the FCC’s recent vote and restore Net Neutrality once again.”

“Your proposal threatens to eliminate the FCC’s oversight role that has been in place for decades under both Democratic and Republican presidents,” said Senator of Colorado, Michael Bennet. “As a regulatory body, the FCC has a responsibility to protect the standards that make it possible for our communities to thrive in the 21st Century.”

Over in Vermont, Senator Bernie Sanders hasn’t made any official moves just yet, but like Senator Bennet, his position is clear.

“Once again, the Trump administration has sided with big money and against the interests of the American people,” Sanders said in a statement last month. “The FCC’s vote to end net neutrality is an egregious attack on our democracy.”

But while individual states trying to write their own net neutrality regulations is certainly an interesting topic of discussion, whether they are actually legally entitled to is another matter.

The following extract is taken from the 1934 Communications Act, which still acts as the basis for telecommunications regulation and legislation in the states. Obviously the Act has been updated a couple of times, but we feel this particular extract is particularly relevant to the current net neutrality debate.

“Nothing in this part precludes a State from imposing requirements on a telecommunications carrier for intrastate services that are necessary to further competition in the provision of telephone exchange service or exchange access, as long as the State’s requirements are not inconsistent with this part or the Commission’s regulations to implement this part.”

In short, individual states are entitled to make their own regulations, assuming these new rules do not contradict the position of the FCC. Efforts by the aforementioned states to preserve net neutrality rules do exactly this.

That said, there are several examples of cases where federal US courts have ruled the FCC does not have the power to meddle in state affairs, though these are cases which only effect that state itself. This is where the argument ventures into very muddy waters; as US ISPs are national companies, while content companies, such as Netflix, are international brands, some might argue the FCC has a role as any regulations concerning these business would be of national interest.

Of course, the legal might of the ISPs will fight in the FCC’s corner, while the new-money internet companies will back any rules which preserve net neutrality. As with other aspects of the digital economy, we are exploring unknown territory. These conflicts will likely take some time as there is little precedent to lean on, or similar arguments in other areas could be interpreted in several different ways. Hurdles will be thrown up everywhere.

Of course, these moves are exactly what you would expect. Opposition has lost a battle, which turned bitter and quite personal quickly, and has moved onto the being difficult stage. The same trend is currently being witnessed in the UK, with the Brexit opposition throwing hurdles at every stage of the divorce negotiations. It’s a common tactic in politics; lose a vote, then make life as difficult as possible for the winner in an effort to win PR points and damage your oppositions credibility in the public eye.

Aside from the actions of the Senator’s, momentum is starting to gather steam within the various associations and public interest groups. These are organizations which could cause some serious headaches considering many of them have the backing of the world’s largest technology companies.

“The final version of Chairman Pai’s rule, as expected, dismantles popular net neutrality protections for consumers,” said Internet Association President & CEO Michael Beckerman. “This rule defies the will of a bipartisan majority of Americans and fails to preserve a free and open internet. IA intends to act as an intervenor in judicial action against this order and, along with our member companies, will continue our push to restore strong, enforceable net neutrality protections through a legislative solution.”

The Electronic Frontier Foundation is another which has stepped forward in support of the Californian bill. It hasn’t proposed any legal action to combat the new rules just yet, but it is not usually shy about fighting Republican intentions. It usually is one of the loudest contributors to anti-government sentiment when it comes to the internet.

There are few people who will occupy the middle ground here, partly due to the emotional euphoria which has been whipped up into a frenzy by both sides. The PR battle has parted the industry, keeping the right and left as far apart as they have been for years, but the sensible answer probably sits somewhere in between.

Tom Wheeler’s net neutrality rules probably place too many restrictions on the telcos, while the so-called ‘Restoring Internet Freedom Order’ maybe offers to much freedom to billion-dollar businesses, who haven’t really earnt the trust being granted through light-touch regulation they now have. The sensible solution will be in the middle, but since when has politics ever been sensible.