Spalter Says ‘Hell No’ to State, Local Net Neutrality Efforts, Pledges USTelecom Challenges

USTelecom will “aggressively challenge” state and municipal net neutrality efforts that are inconsistent with the FCC’s December order, USTelecom CEO Jonathan Spalter said Monday. Many expect industry lawsuits challenging state actions including a Washington state law and five gubernatorial executive orders (see 1803230041). Acknowledging litigation is likely, a Massachusetts Senate special committee said Monday “there are strong arguments to support state action in this area and the uncertainty of the Federal legal landscape should not prevent states from acting.” Democratic lawmakers in Colorado and Baltimore also unveiled proposals.

“It is said that ‘the road to hell is paved with good intentions,’” Spalter blogged. “Nowhere can we find a more perfect modern example for this sentiment than in the cacophony of disparate calls by state and local regulators across the country each seeking to impose their own brand of ‘net neutrality’ regulations on consumers’ internet experience. USTelecom will challenge state and local actions while also asking Congress to make national net neutrality laws," Spalter said. “All Americans deserve equal rights online. Standing up for them means not merely saying no to state-level regulation, but hell no to the idea of dismantling what must be a united and connected future.”

Massachusetts should “fill the gap left by the federal government” on net neutrality and broadband privacy rules, state Sen. Cynthia Creem (D) said Monday as the Massachusetts Special Senate Committee on Net Neutrality and Consumer Protection released a report recommending legislation. The committee, established in January with five Democratic and two Republican members (see 1801190025), plans a public hearing Wednesday at 1:30 p.m.

The state senators recommended legislation to protect consumers from blocking, throttling and paid prioritization; require ISP transparency about network management practices by establishing a state ISP registry; and spur net neutrality compliance through restrictions on government contracts and IP-to-IP interconnection agreements. Also, the proposed bill would ban ISPs from collecting, using or disseminating consumers’ personal data without consent. The panel recommended giving authority to the Massachusetts Department of Telecommunications and Cable to develop net neutrality and broadband privacy rules, while authorizing the attorney general to bring privacy actions against noncompliant ISPs.

“When Washington shirks its responsibilities, the states must lead the way,” said Creem, the panel’s chair. Senate President Harriette Chandler (D) supported state legislation as “the first step in ensuring that consumers maintain their rights and privacies.” Committee Vice Chair Bruce Tarr (R) agreed consumers should be protected. “Effective internet access is essential for all of us, and we need to ensure that practices like throttling and blocking aren't used in Massachusetts to disrupt that access and compromise the fairness we should expect from service providers,” Tarr, the Senate minority leader said.

State net neutrality legislation “can withstand both a preemption and Dormant Commerce Clause challenge,” the special committee report said. “More is involved in federal preemption than an agency’s own pronouncement. Express preemption is authorized only when the explicit language confirms Congressional intent to preempt state law.”

It's toughest to defeat one likely argument under the Dormant Commerce Clause that “state net neutrality laws expose ISPs to conflicting duties and obligations across the country that are impractical to comply with,” the Massachusetts Senate report said. “The arguments in favor of invalidating state laws on this prong essentially claim that the state with the strictest regulations in effect set the policy for the whole nation. For example, separate state laws regulating the length of train box cars were struck down under the Dormant Commerce Clause because, quite literally, train box car lengths cannot be altered every time trains cross state lines. What is distinguishable about a state net neutrality law is that for as long as the internet has been classified as a Title I 'information service,' ISPs have had to comply with the dual enforcement scheme of both FTC and state regulation.”

The panel’s proposed legislation hasn’t been introduced, said Creem staff attorney Sarah Chase. “The Committee will take feedback on the language as part of Wednesday’s hearing and may make changes based on that feedback,” she emailed. Anyone may testify at Wednesday’s hearing, which has no invited witnesses and will be livestreamed, she said. It follows a Feb. 6 hearing that included the state’s Democratic U.S. Sens. Ed Markey and Elizabeth Warren, Massachusetts Attorney General Maura Healey and officials from Free Press, CTIA and the New England Cable and Telecommunications Association.

Colorado Democrats floated a net neutrality bill last week. ISPs violating net neutrality principles would be denied USF high-cost support and other broadband funding, under a bill introduced last week in Colorado. HB-1312, introduced by Rep. Chris Hansen and two other state Democrats, would require the attorney general to develop guidance for consumers on how to file with the FTC complaints about violations. It also would require state government bodies to prefer ISPs that certify as net neutral.

The Baltimore City Council would hold a hearing on the FCC December order under a resolution proposed Monday by Council President Jack Young (D). Two other Young resolutions would order a hearing looking into feasibility of municipal broadband and physical status of city conduit. “A repeal of net neutrality would result in real, tangible losses,” said the Baltimore official.