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By Wiley Cason

In response to the repeal of Federal Net Neutrality rules, Washington State’s governor and attorney general have both argued that state-level regulations may still prevent Internet service providers (ISPs) from discriminating amongst data offered on their networks.

In 2015, the Federal Communications Commission (FCC) passed The Open Internet Order; a ‘Net Neutrality’ rule which reclassified broadband Internet from an “information service” (subject to Title I of the Communications Act) to a “telecommunications service,” subject to Title II of the Communications Act. By placing broadband Internet under the more restrictive Title II framework, the FCC was attempting to prevent “blocking, throttling, and paid prioritization” of Internet content, so that there would be no interference from ISPs in consumers and content providers “reach[ing] one another on the Internet.”

This past December the FCC voted 3-2 in favor of The Restoring Internet Freedom Order which repeals these rules and seeks to encourage investment and development in Internet infrastructure by returning to the so-called “light-touch” regulatory framework that existed prior to the 2015 rule.

Despite this repeal, Governor Inslee and Attorney General Ferguson hope that state laws and regulations will be able to preserve Net Neutrality for Washingtonians.

In response to the Net Neutrality repeal, multiple Washington-based ISPs have made loud promises to the public that they are committed to the principles of an “open Internet”, and will not be throttling or slowing down certain types of content for their users.

It’s promises like these that Inslee and Ferguson believe offer one possible path to state-level net neutrality protection; holding Internet providers to warranties made to subscribers. The Governor and Attorney general have other ideas too, including favoring ISPs that uphold Net Neutrality when awarding state contracts, and encouraging local governments to enter the market as Internet providers themselves.

Numerous Washington legislators are prepared to support these ideas, including Rep. Norma Smith (R-Clinton). This December, Rep. Smith announced that she was introducing legislation to prohibit blocking, throttling, or paid prioritization under the Washington Consumer Protection Act. Smith told the Spokesman-Review that if, “if the phone and cable companies truly support an open internet they should not object to the legislation.”

Regardless of whether any of the phone or cable companies object to these ideas, serious efforts to enforce state-level net neutrality laws are likely to run into push-back from the FCC. Senior FCC officials reportedly have said that state and local governments do not have authority to undermine the FCCs Internet rules, due to the Internet’s status as an interstate information service. Whether state-level laws on net neutrality would in fact be pre-empted by the FCC’s recent order is the subject of much speculation; some legal experts believe that courts would decline to bar states from regulating on their own. Even still, Washington’s Attorney General is challenging the Internet Freedom Order more directly in a separate lawsuit, filed at the end of last year.

Posted by Washington Journal of Law, Technology & Arts

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