What Happens When States Have Their Own Net Neutrality Rules? (bloomberg.com)

Last month FCC Chairman Ajit Pai dismantled Obama-era rules on net neutrality. A handful of lawmakers in liberal-leaning U.S. states plan to spend this year building them back up. FCC anticipated the move -- the commission's rules include language forbidding states from doing this, warning against an unwieldy patchwork of regulations. But lawmakers in New York and California aren't aiming to be exceptions to the national rules; they're looking to, in effect, create their own. From a report: In New York, Assemblywoman Patricia Fahy introduced a bill that would make it a requirement for internet providers to adhere to the principles of net neutrality as a requirement for landing state contracts. This would mean they couldn't block or slow down certain web traffic, and couldn't offer faster speeds to companies who pay them directly. Fahy said the restrictions on contractors would apply even if the behaviors in question took place outside New York. She acknowledged that the approach could run afoul of limits on states attempting to regulate interstate commerce, but thought the bill could "thread the needle." Even supporters of state legislation on net neutrality think this may go too far. California State Senator Scott Wiener introduced a bill this week that would only apply to behavior within the state, saying any other approach would be too vulnerable to legal challenge.

But this wouldn't be the first time a large state threw around its weight in ways that reverberate beyond its borders. The texbook industry, for instance, has long accommodated the standards of California and Texas. [...] The internet doesn't lend itself cleanly to state lines. It could be difficult for Comcast or Verizon to accept money from services seeking preferential treatment in one state, then make sure that its network didn't reflect those relationships in places where state lawmakers forbade them, said Geoffrey Manne, executive director of the International Center for Law & Economics, a research group.

Comments

States' Rights

[DatbeDank]

Good! If the citizens of California and New York feel these rules are necessary and important they should be able to dictate such rules as they see fit.

That was, once upon a time, the magic of America, applying bottom up legislation allows for what works in specific areas to be applied and for other areas to not be applied.

It's time to go back to an anti-federalist interpretation of the federal government.

Re:States' Rights

[Registered Coward v2]

Good! If the citizens of California and New York feel these rules are necessary and important they should be able to dictate such rules as they see fit.

That was, once upon a time, the magic of America, applying bottom up legislation allows for what works in specific areas to be applied and for other areas to not be applied.

It's time to go back to an anti-federalist interpretation of the federal government.

You forgot that people are only anti-federalist when the feds do something they don't like, but all for the Feds to exert their power to prevent states form doing something they don't like.

Re:States' Rights

[CanHasDIY]

Republicans are for states rights, unless the states pass laws they don't like.

Democrats are for states rights, unless the states pass laws they don't like.

Re:States' Rights

[michael_cain]

The preemption doctrine has been around for a long time, and has been consistently upheld by the Supreme Court: once the feds decide to regulate, states may also regulate only to the extent and in ways that Congress specifies. With the default case being, if Congress doesn't specify, the states can't regulate.

For example, the Clean Air Act explicitly gives California authority to set tougher-than-federal emission standards for some things (cars in particular) -- it's right there in the statute. Other states are given authority to choose between the federal standard or the California standard where they are different, but no other state can make up its own standard.

Re: States' Rights

[Anonymous Coward]

Actually, it is the other states that are imposing their own form of bat-shit craziness on New York and California, which are merely the targets of your ire because you fully embrace the flawed agenda of the faux-conservative right-wing Republicans. It was the same with same-sex marriage. States like Alabama and Kansas went out of their way to attack liberals, declaring they would not recognize the actions, even the Civil Unions of other states. A serious violation of the Constitution. They even sought to use California's public referendum to achieve such discrimination. Which said success should tell you something, as well as their failures in courts.

It's actually the Republicans who refuse to work with those who don't toe the party line. And they have nothing to offer, notice how they spent years declaiming for an ACA repeal, but never got around to offering an alternative. They couldn't even stand to hold meetings and discussions on it, let alone have a debate. Same with their tax cuts.

And let's really recognize the truth, the Republican members of state legislatures across the country have been in big Telecom's pocket, doing everything they can to prevent municipal ISPs, opposing accountability for big corporations, and handing them even more tax dollars for nothing.

Sorry, but it's the truth, and any declarations otherwise are as false as Trump's Voter Integrity Commission.

It's OK though, as long as rampant gerrymandering and voter discrimination is allowed, the GOP can screw America.

Re: States' Rights

[drew_kime]

Perhaps we should just let it go to extremes and allow for some states that have vastly different rules and let people vote with their feet. Don't like the socialist state of Delaware? Move to the unfettered free market state of Kansas.

Those most likely to be on the wrong end of those extremes are least likely to have the resources to move.

Re:States' Rights

[Green Mountain Bot]

Something along the lines of: Businesses who choose to violate net neutrality will not be granted license to do business in the state of California. Want to do business there? Follow the rules they have.

Re:States' Rights

[Anonymous Coward]

Since when is a home-owners association equivalent to a democratically elected state legislature?

Distinction without difference. Name one argument, that justifies State legislatures imposing rules, that would not also apply to Home Owner Associations (which, BTW, also have elected leaders).

Greater scope of authority as duly granted by the sovereignty of the people. Ouch, zing, mi, you lost in one.

The OP's original argument, regarding "applying bottom up legislation" certainly works equally in both cases...

Yes, a Homeowner's Association setting up its own ISP structure would be a valid option.

But hey, if you want to stick to local governments, why would you oppose a State's right to decide, how certain races are treated within its borders?

Ah, that's a different discussion, and the ultimate reason is that...any decision by any form of authority, is subject to peril, and the fact, is, it's been quite obvious that most people can't be trusted to make decisions based on race. Sorry.

Remember the earlier claim: Everybody knows states’ rights mean the right of Southern states to resist integration. ?

Sad, but true, isn't it? It was also the case when it was tariffs, and the treatment of Indian Tribes, and even Westward expansion. States' Rights is forever tainted by association in the United States.

You can't be supporting a principle in one application and oppose it another — not without being a hypocrite.

Actually, you can. That's the whole point of discernment, to distinguish between one thing and another, rather than rely on flawed, overly simplistic absolutes.

I know, mi, you're just a shit-spewing troll, but you're really not going to play very far with this one, any grade-school philosophy class could spot your facetious level of argumentation as fundamentally groundless.

But, as I said: 2018 is when Illiberals learned to love State Rights. (Just after learning to love the FBI in 2017, I might add!)

Actually, we did that 20 years ago, when it was same-sex marriage and marijuana legalization. Con-Conservatives, as usual, however, went all tantrum about it, and decided to go anti-states' rights.

Guess you didn't notice. Was your head too far up your own ass?

Is that a problem?

[Okian Warrior]

You forgot that people are only anti-federalist when the feds do something they don't like, but all for the Feds to exert their power to prevent states form doing something they don't like.

Is that a problem?

I was under the impression that the governments (both federal and local) should work for the benefit of the people, and that a big problem with governments as they are now is: that they don't.

Why is it bad that the people always favor things that they would like?

(Yes, there are corner cases like slavery and discrimination, but these only get changed when a majority wants them to change. We only gave women the vote in 1920 when a majority thought it was appropriate. Net Neutrality is not one of those corner cases.)

Re:Is that a problem?

[nine-times]

Why is it bad that the people always favor things that they would like?

I think the point that "Registered Coward" was trying to make is that you have a bunch of "anti-federalists" who claim to object to actions by the Federal government on principle, but who will then happily endorse Federal action when it's in favor of their own pet politics. Basically, he's accusing people of hypocrisy.

Like you have people who are pro-gun, who don't like the idea of the Federal government doing any gun control because it's "Federal overreach". They want gun regulations, if there are any, to be set by the state. They argue that it makes more sense because the culture around guns and the need for a gun in Wyoming may be very different than in Washington D.C., so the people in Washington shouldn't make rules for Wyoming. Ok. Fair enough. I wouldn't necessarily say that's the end of the discussion, but it's a valid point.

But then those same people will propose a Federal law mandating that a gun permit from any state should be honored in all states. Basically, if Wyoming allows any random idiot without training to carry a concealed weapon, they want the Federal government to intervene and tell every other state to allow those same idiots to carry a concealed weapon. It's still the Federal government trying to override the state's decisions on gun control, but when the Federal government is overriding the states in a way they like, they're fine with it. Ergo, the objection to "Federal overreach" is not based on any principle. It's really just that they don't like what the federal government is doing, so they're making up fake "principles" for rhetorical purposes.

Not that there aren't genuine libertarians and anti-federalists, but a lot of the "libertarians" aren't libertarians, and the "anti-federalists" aren't opposed to federal action. A lot of them are a bunch of crybabies who are making up nonsense because they aren't getting their way.

Stop this nonsense... No it's not

[TFlan91]

"The internet doesn't lend itself cleanly to state lines. It could be difficult for Comcast or Verizon to accept money from services seeking preferential treatment in one state, then make sure that its network didn't reflect those relationships in places where state lawmakers forbade them, said Geoffrey Manne, executive director of the International Center for Law & Economics, a research group."

No. It's not "difficult" for Comcast, Verizon, etc to know where their property is and under what jurisdiction it is. It's not "difficult" at all.

You can't have your cake (we don't know what going on on our networks) and eat it too (we know exactly who is using our networks, pay up).

Re:They get sued by the FCC.

[Midnight Thunder]

Part of the repeal, was that they forbade states from making their own rules.

But are they really legally allowed to do that? This wording sounds like only congress could put into law. Just on this wording alone I can see states suing the FCC.

This is great!

[XxtraLarGe]

I am 100% in favor of Net Neutrality, the Paris Accord, Common Core and a $15 Minimum Wage in New York & California. Let them lead the nation, and we'll see how well those policies work out. That's the idea behind federalism, where the states can be labs for democracy.

Ajit Pai, public asshole #1

[TiggertheMad]

Big business has shoved these changes through, despite the wishes of the end users. Now as a result, they aren't going to have to deal with one set of regulations, they will have to deal with 50 sets of differing regulations and the resulting lawsuits when they screw up.

It couldn't happen to a nicer bunch of guys.

Re:They get sued by the FCC.

[H3lldr0p]

This is, or was, being sorted out in a lawsuit between AT&T and the FCC over the FCC's overriding the anti-muni broadband laws in Tennessee. The FCC lost the first round in federal court, with the court saying the FCC's regulations didn't carry the same precedence as federal laws do. See Ars' coverage: https://arstechnica.com/tech-policy/2016/08/in-blow-to-muni-broadband-fcc-loses-bid-to-overturn-state-laws/

With that in hand, it should be a pretty easy time for the states to argue that the FCC can't limit their ability to give the ISPs additional rules to go by within the state's borders. In fact that was the regulatory scheme for years and why the credit card companies fought to get themselves declared to be regulated by the federal government only.

Re:They get sued by the FCC.

[Shotgun]

The ability of the states to implement taxes is not abridged, though.

Notwithstanding anything recorded in the Federal Registry, any person, collection of persons, or legal entity providing internet protocol communication services within the borders of Californian shall be taxed yearly for the market value of any equipment the the Attorney General determines is being used to throttle packet rates based upon the packets origin.

Bring it on

[Kludge]

States and cities make decisions about which businesses get to run cables on property owned by those states and cities. There are many requirements that businesses must meet to run such cables. Why not make net neutrality such a requirement? The city or state is not regulating that business. That business is free to choose not to run their cable in the right-of-way and shit on net neutrality. But, if they want that contract, they have to meet the standards of the property owners.

Stick that in your FCC.

Re:"certain"

[Smidge204]

"Certain web traffic" because the concern - well founded by historical behavior, I might add - is that ISPs will selectively slow or block access to services in order to either extort more money or to put up barriers to competition.

For example, your startup video streaming service competes with Verizon's video on demand? Well your traffic will count towards Verizon's data caps while their own traffic does not (letting them charge more from their customers) and *your* traffic in particular will be throttled or interrupted unless you pay extra.

See: Portugal's tiered internet structure, various lawsuits against Comcast, Verizon, AT&T and others over the past decade.

It has nothing to do with the potential for government censorship - that can happen any time for any reason with or without Net Neutrality rules. Instead, by opposing Net Neutrality, you are advocating that corporations be allowed to censor whenever it benefits them.
=Smidge=

Re:Here's the way US law works

[pr0t0]

Federal law -> state law -> local law

Yes, but only if the higher level of government has the legal authority to enact such laws over the lower level, and while the FCC is a federal agency, it does not have specific legal authority to overturn state laws. This lack of authority was unanimously upheld in the US Court of Appeals for the Sixth Circuit in August of 2016.

At that time Tom Wheeler was chair and was trying to block states and municipalities from enacting local laws that prevented the growth of municipal broadband. All of the ISPs and their congress-critter shills rushed to the defense of states' rights at that time.

In fact, Section 2 of a bill introduced to amend section 706 of the Telecommunications Act of 1996 stated: It is the sense of Congress that the Federal Communications Commission does not have the authority under section 706 of the Telecommunications Act of 1996 (47 U.S.C. 1302) to prevent any State from implementing any law of such State with respect to the provision of broadband Internet access service (as defined in section 8.11 of title 47, Code of Federal Regulations) by such State or a municipality or other political subdivision of such State.

That was written by Rep. Marsha Blackburn(R-Tenn) who, I'll point out, has telecom services as one of her top-10 industry contributors. At that time, ISPs were desperate to try to frame this as a political issue to gain support, but 3/4 of all municipal broadband projects at that time where voted into action by communities that voted Republican. That's because whether you ride a donkey or an elephant, we all want fast internet and if the ISPs aren't going to provide it where we live, we should be able to do it ourselves. It was a serious issue for rural America, where ISPs do not want to invest. But rural America is also largely right-leaning, so those citizens weren't having it and demanding muni-broadband.

In the end though, Wheeler and rural America lost. The ISPs were able to make the case that the FCC did not have the right to stop the states...maybe rightly so. The citizens of a state can always vote to enact or repeal state laws they feel do not serve their interests.

So here we are again. The ISPs are once-again trying to frame this as political issue, with more success this time I might add. Only now, they are against the states' rights they so gleefully endorsed two years ago. Judging from the rhetoric I've seen, most of those against the principles of Net Neutrality do not actually understand Net Neutrality, and simply regurgitate the talking points they hear on Fox News. So it's not inconceivable that the states will lose here, despite the massive flip-flop and obvious hypocrisy.