State Officials Disagree on Commissions' Net Neutrality Role
Bills asking state utility commissions to oversee net neutrality are raising disagreement among state officials. Some say state commissions can and should handle the responsibility, but others said such oversight is impractical or better handled at the federal level. At a Wednesday hearing in Massachusetts, a state senator driving net neutrality legislation asked if industry opponents would at least consider signing a memorandum of understanding.
California and Washington state bills originally envisioned state commissions overseeing net neutrality, but lawmakers later amended the bills to shift enforcement to the attorneys general. At a Jan. 11 hearing in California, some state senators objected to involving the California Public Utilities Commission because they said the CPUC lacks expertise, moves slowly and is overworked (see 1801110039). The Washington Utilities and Transportation Commission was “not enthusiastic” about participating, said the Democratic author of the bill that’s now Washington state law (see 1801190025).
The practicality of giving net neutrality responsibilities to state commissions depends on the state, said Santa Clara University law professor Catherine Sandoval, a former CPUC commissioner and FCC staffer who supports state actions countering the FCC order. The CPUC could do it, but some legislatures in other states limited their commission’s telecom authority, she said in an interview. Sandoval disagreed with those who say the California commission isn’t capable of overseeing net neutrality. “The legislature can allocate to the CPUC resources to do what’s necessary, so I really don’t think that should be the leading argument about that issue,” she said. The California commission controls telecom providers’ state licenses and has a communications division with “a lot of people who have very deep expertise,” she said.
“It does not seem terribly practical to me,” said Montana Public Service Commissioner Travis Kavulla, a Republican who supports the FCC’s December order. The former NARUC president doubts most commissions have adequate resources, though there may be “some headroom” in some states, he said: “Even while state commissions’ role in telecommunications has decreased, staffing levels have sometimes not diminished in proportion.” In Montana’s case, the PSC reassigned former telecom staff to energy rate reviews, Kavulla said.
“States should certainly have the right to find the best solutions for the people of their state,” emailed South Dakota Public Utilities Commissioner Chris Nelson, but the internet is interstate so Congress should establish federal net neutrality rules. “That states are feeling the need to craft their own piecemeal solutions begs for congressional action to solve this debate once and for all,” the Republican said.
“Federal and state agencies share jurisdiction all the time on a wide range of issues,” countered Nebraska Public Service Commissioner Crystal Rhoades, a Democrat who opposes the FCC order. “It's a little shocking that anybody is pretending that shared jurisdiction is somehow novel or revolutionary.” A Nebraska bill (LB-856) would give enforcement authority to the PSC. A Nebraska state senator Tuesday introduced a resolution (LR-453) seeking a net neutrality study.
State commissions are “well-poised” to implement state net neutrality laws, said National Regulatory Research Institute Telecommunications Principal Sherry Lichtenberg. “It’s not a question of the ‘size’ of the staff but their understanding of the issue,” she emailed. The FCC’s 2015 rules set an outline that states can follow once their states enact laws, she said.
Massachusetts
Wireless and cable associations will discuss with members the idea of signing an MOU with the Massachusetts government to affirm that ISPs will adhere to net neutrality principles, said CTIA and New England Cable and Telecommunications Association officials at a Wednesday hearing of the Special Senate Committee on Net Neutrality and Consumer Protection. Chairwoman Cynthia Creem (D) raised the idea of an MOU to industry witnesses, saying “I’m asking you to be creative.”
The special committee’s bipartisan report recommending state legislation on net neutrality and ISP privacy (see 1803260024) received opposition from industry groups and support from the American Civil Liberties Union. Another panel, the Joint Committee on Telecommunications, Utilities and Energy, plans to hear three net neutrality bills next Tuesday.
Creem asked if carriers could legally violate net neutrality principles under the FCC December order. They won't, replied CTIA Assistant Vice President-State Legislative Affairs Gerard Keegan. If they did, the FTC could bring an enforcement action, he said. Creem asked again, “But they could?” Keegan answered, “They could do a lot of things, I guess.” If carriers support net neutrality principles, they should support Massachusetts legislation, said Creem. “I can’t understand why we can’t do a bill that codifies what you agree with and I agree with.” Keegan said national carriers object to having many different state laws.
“State legislation would be pre-empted by federal law” because broadband is interstate, Keegan said. But state Sen. Eric Lesser (D) said it isn’t “clear cut” if state actions are pre-empted and it’s “in the eye of the beholder” what counts as fettering internet access. Lesser sees the committee’s proposal as opening access, he said.
Massachusetts already wrote to Congress, asking for a federal law, but to no avail, said Creem. “We’re responding to our constituents,” she said. “We can’t share in the mistakes [of] Washington.”