October 22, 2018
Our nation’s digital economy is the envy of the world, primarily because broadband internet service providers (ISPs) have invested more than $1.6 trillion to deploy fast, high-capacity networks that consumers and businesses alike demand. This week, our organization joined forces with others to file another lawsuit – this time in the state of Vermont – with the goal of protecting the unified, national broadband policy framework that has led to the robust and open internet that all Americans enjoy today. Vermont’s attempt to resurrect within its borders the same restrictions that the FCC replaced with less heavy-handed, more reasoned transparency and disclosure protections is both unnecessary and unlawful.
I understand why state policymakers have rushed to enact their own net neutrality laws; there is a lot of misinformation out there, and scare tactics about ISPs limiting access and choices are being used by some of the very same entities that have flourished because of the internet’s openness. Oddly, however, there have been no recent credible accounts of ISPs actually violating basic net neutrality principles.
Vermont’s attempt to reinstate the FCC’s repealed net neutrality requirements relies in large part on its state contracting authority. The mandates require any ISP (but no other service provider) that signs a service contract with one of many state entities to adhere to net neutrality principles for services provided to all customers throughout the state, and they are not limited to the mass market retail services that were regulated under the FCC’s repealed 2015 mandates. The problem is that although Vermont can decide what services it wants to purchase and how those services should be provided, it cannot use its contracting authority to dictate how services it is not purchasing must be provided, or to otherwise indirectly regulate where federal law prohibits direct regulation.
We are confident that Vermont’s mandates will be declared unlawful for several reasons. First, because the FCC’s recent Restoring Internet Freedom order expressly prohibits states and localities from enacting contrary or more stringent requirements that restrict broadband service, Vermont’s imposition of net neutrality requirements is preempted. Second, state-by-state, piecemeal net neutrality regulation is unworkable because the internet does not respect state boundaries. Thus, Vermont’s approach won’t pass legal muster because it seeks to impose regulation outside of state borders. A third reason is that these requirements are an attempt to impose 1930’s era “common carrier” restrictions on ISPs which, as information service providers, are immune from such regulation.
Upon hearing of our challenge, Vermont Governor Phil Scott said: “While I understand consistent regulation is important to ensuring a vibrant and thriving telecom and cable sector, our obligation as a state government is to our citizens, who I strongly believe have a right to free and open access to information on the internet. In the absence of a national standard to protect that right, states must act.” I agree with most of that statement; consistent regulation is key, and all citizens, not just Vermonters, have a right to the free and open internet that we have today. Where I respectfully part ways is with the notion that there is no national standard in place to protect that right. The FCC has adopted a thoughtful national approach, and has pledged to work with the Federal Trade Commission (and state attorneys general), which can and will use their existing authority to protect consumers against unfair and deceptive practices. And with any luck, permanent net neutrality protections will come soon in the form of legislation from Congress.
We all want the same things – fast broadband connections available throughout the country and an open internet with safeguards and protections against harmful, unfair, and discriminatory access to the content and services we want and need. Whether you live in Vermont or Virginia, California or New York, everybody deserves the same protections offered by the current, light-touch, national broadband policy framework, without the baggage of disparate state regulation or other investment-killing regulatory overhang. If the end goal is internet freedom and open access for all, we all should be held to the same net neutrality standards and requirements. Our connected future is counting on it.
Diane Holland is a Vice President, Law & Policy at USTelecom.