Washington State Passes Nation's Toughest Net Neutrality Law

It's the first legislature to pass a law of this kind since the FCC repealed federal net neutrality regulations in December. Lawsuits are likely to follow.
by | February 28, 2018
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The Washington state legislature approved a bill on Tuesday, which Gov. Jay Inslee is expected to sign, that would enact sweeping net neutrality regulations for all internet service providers (ISPs) operating in the state.

It would be the first state to enact a law of this kind since the Federal Communications Commission (FCC) rescinded net neutrality regulations in December.

Five governors -- in Hawaii, Montana, New Jersey, New York and Vermont -- have issued executive orders restoring some net neutrality requirements, but they are limited to companies that have contracts with the state government. Washington's law, by contrast, would apply to all ISPs operating in the state and directly outlaw the blocking, throttling (slowing content) and paid prioritization of some internet content over others.

Net neutrality is the principle that ISPs -- like Comcast and Verizon -- should treat all internet content equally, even though it can be manipulated for business advantage or monetary gain.

The Washington law would almost certainly be subject to lawsuits by broadband companies arguing that it violates the FCC’s December order. The FCC made clear that it would preempt any state or local government that tried to enact net neutrality regulations of its own.

Legal experts have mixed opinions about which side would prevail if the issue went to court.

Telecommunications law expert Pantelis Michalopoulos told Governing in January that the FCC will likely have a difficult time proving their case. Usually, he says, federal preemption is based on some existing conflicting federal regulation that trumps state legislation.

“Here, we have an attempt to preempt state laws based on nothing, or virtually nothing, precisely because the FCC has decided not to promulgate substantive rules on [net neutrality],” Michalopoulos says. “This makes it a little more difficult for this kind of preemption to succeed.”

Past court cases regarding FCC preemption have also yielded mixed results: The commission lost a 2015 case trying to preempt state laws on municipal broadband networks, but it was successful in a case regarding voice over internet protocol, or VoIP services, like Skype.

The bill’s main sponsor, Washington state Rep. Drew Hansen, previously told Governing that he’s prepared for any legal challenges that come.

“The FCC claims it has the power to preempt state laws, but that doesn’t mean they actually do. I can claim I have the power to manifest unicorns on the Capitol lawn, but if you look out your window in Olympia, there are no unicorns,” Hansen said. “People throw around words like ‘preemption’ like they’re magic.”

Democrats in Congress recently introduced a bill to restore federal net neutrality regulations, but it’s almost sure to get stuck in the Republican-controlled House. Over half of U.S. states have some type of net neutrality bill currently moving through their chambers.