The plans so far are to be defiant and take the FCC to court. Beyond that, there’s a limited slate of options.
When the FCC voted Thursday to repeal net neutrality regulations, it went one step further: It banned state and local governments from taking their own action to preserve net neutrality within their borders.
It’s a preemption effort that isn’t sitting well with local leaders across the country. A week before the vote, 58 mayors and county officials wrote FCC Chairman Ajit Pai to say they were “deeply disturbed by the Commission’s efforts to preempt our ability to protect consumers and businesses in our communities.”
But Republican FCC Commissioner Michael O’Rielly, who voted for the repeal, said Thursday that he wanted even stronger preemption rules on the books.
“Broadband service is not confined to state boundaries and should not be constrained by a patchwork of state and local regulations,” he said at the FCC meeting. “A hodgepodge of state rules could severely curtail not only the next generation of wireless systems that we have been working so hard to promote, but also the technologies that may rely on these networks in the future. … I would actually go even further on preemption, but I could only carry the debate so far today.”
So far, that isn’t stopping some state and local leaders—almost all of them Democrats—from saying they’ll attempt to create their own versions of net neutrality. Broadly speaking, they oppose the FCC’s move to allow broadband providers to serve some websites faster or slower than others, or block some altogether.
Washington Governor Jay Inslee said Wednesday that his state would enforce net neutrality rules by sanctioning broadband providers that block content or force customers to pay for prioritized access to apps and services. New York Governor Andrew Cuomo was also defiant of the FCC vote, saying on Twitter that his state would take “all necessary steps” to protect net neutrality. A California state senator also announced his plans to introduce net neutrality legislation next year.
Already, states and local governments say they’re preparing to sue the FCC. That includes attorneys general from New York, Washington, Massachusetts, and Iowa, and officials from Santa Clara County, California, to name a few. This could be an uphill battle: The FCC has authority over interstate communication laws, and Republican commissioners cite the Constitution's Commerce Clause to support their case. The agency has preempted laws in favor of cities before.
The preemption clause is sure to play a big role in these challenges. The final language isn’t clear yet—the order won’t be public until it’s published in the Federal Register, which could take weeks. But the latest available draft has broad language to block states and cities from enforcing rules that the FCC repealed or decided against imposing. That’s vague enough that it could be interpreted to challenge any attempted legislation that affects broadband providers. Cities also wouldn’t be able to impose “more stringent requirements for any aspect of broadband service that we address in this order.” That means states can’t make broadband providers disclose any more information than required by the FCC about how they might prioritize or block content, and also likely can’t impose additional privacy protections for consumers.
“This order is another nibble away at local authority,” said Angelina Panettieri, a principal associate at the National League of Cities. “That’s in keeping with what this FCC has been doing all year in terms of preempting cities, and in terms of painting states and cities as the enemy of broadband deployment.”
The question of consumer protection remains a big one for local leaders. The FCC decided Thursday that it will no longer be the chief regulator of broadband providers. Instead it will split that responsibility with the Federal Trade Commission, like it did before the FCC’s net neutrality order took effect in 2015. That’s a step designed to weaken the regulatory structure around broadband providers. But by broadly preempting states and cities, there’s concern that government agencies at all levels will have too high a barrier to taking action.
“There’s some very broad language in the order that could be used as a weapon against cities by [the telecom] industry in the future,” Panettieri said. “The preemption ensures there’s no federal watchdog and there isn’t allowed to be a state or local watchdog.”
Net neutrality, city by city
Aside from legal challenges, there are a few ways that cities and states can preserve some elements of net neutrality rules if they want to, but it’ll take some investment in infrastructure. One example is the more than 500 communities that have built publicly owned broadband networks, like Chattanooga, Tennessee’s much-hailed municipal fiber network. These networks are often competitors to corporate providers, expanding broadband service to homes and communities that aren’t served by private operators. They can put pressure on private companies to lower prices or provide better service in an area, too. They also allow the government operators to set their own rules around equal access.
Since building its own super-fast network, a tech scene has blossomed in Chattanooga. Mayor Andy Berke told CityLab that he worried that the economy could suffer if larger tech competitors pay to get into broadband “fast lanes” that local startups can’t afford.
“We need to make sure people understand what’s at stake,” he said. “If you’re in a place where you have a growing tech ecosystem, you want net neutrality to remain. … Much of our high growth comes from the higher wages of the tech world.”
Still, building a network like Chattanooga’s is a hard thing to do, for many reasons. Not least among them is that 19 states have laws that prohibit or severely limit cities’ ability to do that. (Chattanooga’s network was the subject of its own preemption battle at the FCC in 2015: the agency voted to block state laws that banned the city’s network from expanding. The state sued the FCC and ultimately won, leaving the state preemption law intact.)
But there are other, simpler ways to get a similar result, says Christopher Mitchell, director of the Community Broadband Networks Initiative at the Institute for Local Self-Reliance. If cities are preempted from passing laws or regulations around net neutrality, they can still enter into contractual agreements with providers—but the city has to be able to provide something for the companies to make that happen. Lincoln, Nebraska, for example, built a conduit that telecommunications companies can use to house their cables if they commit to connecting everyone in the city. Broadband cooperatives, which are popular in rural communities that aren’t served by telecom companies, offer another form of protection by allowing residents to decide how their own network will be run.
That won’t restore net neutrality completely, of course; a local network can choose not to prioritize or block content, but the vast majority of sites and services consumers use are on other networks with other providers.
And these options aren’t exactly cheap. But Mitchell said the best option is for cities to get started now, so they don’t get too far behind.
“We’ve been saying for years that cities can’t rely on the FCC to protect them,” Mitchell said. “Cities need to recognize that they need to have more of a say in the future of this essential infrastructure [and] need to start making investments. The earlier they start with modest investments, the better.”