As we discussed in our January blog, states are taking the protection of net neutrality into their own hands. This week Washington’s Governor Jay Inslee signed the first state net neutrality bill to prevent internet service providers blocking from websites or charging more for faster delivery of certain sites, which is now permissible under the Federal Communication Commission’s recent order repealing the rules prohibiting paid preferences, throttling, and blocking that were adopted under President Obama. A number of other states have proposed similar legislation, and governors in New York and Montana have signed executive actions with prohibiting such conduct. In addition, twenty-three states, including Massachusetts and Rhode Island, have filed of a petition for protective review challenging the repeal of net neutrality.
The success of these state efforts remains to be seen as any laws enacted by the states and executive actions taken will unquestionably end up being litigated. In its order repealing net neutrality, the FCC explicitly stated that the states could not create their own rules as only the FCC has authority to oversee broadband internet services given its interstate nature. There are also sure to be challenges by internet service providers in favor of the repeal of the net neutrality rules, as they (and the FCC) believe the repeal will foster innovation and modernization and ultimately benefit consumers.
As we predicted, net neutrality remains a contentious issue in 2018—stay tuned for further developments.