The State of Net Neutrality

The Federal Communications Commission’s (FCC) Restoring Internet Freedom Order (RIFO) took effect June 11, 2018, overturning the net neutrality rules the agency established with 2015’s Open Internet Order. Since then, many individual states and other entities have taken it upon themselves to try to restore net neutrality protections. The following is a review of those efforts—successful, failed, and in progress—around the US.

More than 35 states have introduced legislation to protect net neutrality, although only four (California, Oregon, Vermont, and Washington) have passed laws. Several governors have also issued executive orders related to net neutrality.

The details of state net neutrality actions vary significantly, but common provisions are:

• prohibiting all internet service providers (ISPs) in a state from blocking lawful content, applications, services, or devices; impairing or degrading the speed of lawful internet traffic based on content, application, service, or device; engaging in paid prioritization of traffic; or unreasonably interfering with a user’s ability to select, access, or use broadband internet service
• requiring ISPs to meet the net neutrality provisions above to be considered for state contracts (in some cases, these acts apply to contracts for municipalities as well)
• requiring ISPs to transparently disclose their network management principles
• establishing certification systems or registries of ISPs that meet net neutrality requirements
• issuing resolutions urging the US Congress to implement net neutrality requirements but having no regulatory power on their own

“Having 50 different approaches to net neutrality is not optimal for anybody,” observes Larra Clark, deputy director of public policy for the American Library Association’s Washington Office and the Public Library Association. However, in addition to providing net neutrality in the states where they’ve been implemented, state activities are valuable in advocating for meaningful protections nationally.

“States taking these leadership roles makes it more likely that the FCC will come to the table and the telecommunications companies that have fought us on this issue will work to find a compromise,” she says.

State legislation passed

California

On September 30, Gov. Jerry Brown signed Senate Bill (S.B.) 822, requiring ISPs in the state to comply with net neutrality principles and disclose network management practices. The bill goes beyond the Obama-era regulations by also limiting certain forms of “zero rating,” in which ISPs favor certain information by not counting content or websites they own against data limits.

The bill’s author, Sen. Scott Wiener (D-San Francisco) called it “the strongest in the nation.” However, the US Justice Department filed suit against the law the same day Brown signed it. This suit has been postponed, and California has agreed not to enforce its law until the D.C. District Court decides on the state attorneys general suit on RIFO.

Brown also signed Assembly Bill (A.B.) 1999 on September 30, requiring broadband networks created by local governments to follow net neutrality.

Oregon

Gov. Kate Brown signed House Bill (H.B.) 4155 on April 9. The law prohibits public bodies from contracting with ISPs that do not abide by net neutrality.

Vermont

May 22 Gov. Phil Scott signed S.B. 289, requiring state agencies to contract only with ISPs that practice net neutrality, directing the state Secretary of Administration to develop a process to certify ISPs that practice net neutrality, and directing the state attorney general to study the extent to which the state should enact net neutrality rules. It also requires ISPs to disclose their network management practices. The law followed Executive Order 2-18, issued February 15, that required state agencies to contract only with ISPs that follow net neutrality.

Even though the scope of this law is narrower than California’s, industry groups filed suit to block it October 18 in the US District Court in Vermont.

Washington

Gov. Jay Inslee signed H.B. 2282 on March 5. The law requires ISPs to practice net neutrality and to accurately disclose network management practices.

Executive orders

In addition to Vermont, governors in the following states have issued executive orders related to net neutrality. Each of these orders requires ISPs to follow net neutrality principles to receive state contracts.

Hawaii

Gov. David Ige issued Executive Order 18-02 on February 5.

Montana

Gov. Steve Bullock issued Executive Order 3-2018 on January 22.

New Jersey

Gov. Philip D. Murphy issued Executive Order 9 on February 5.

New York

Gov. Andrew Cuomo issued Executive Order 175 on January 24.

Rhode Island

Gov. Gina Raimondo issued Executive Order 18-02 on April 24.

Bills introduced but not enacted

Alaska

Neither of the proposed bills requiring ISPs to practice net neutrality (H.B. 277 and S.B. 160), nor House Joint Resolution 31 and Senate Joint Resolution 12 urging the US Congress to overturn the FCC’s order, were acted on in committee.

Colorado

H.B. 18-1312 would have required ISPs to follow net neutrality to receive money from the High Cost Support Mechanism, the state’s implementation of the FCC’s Connect America Fund, which provides funds for deploying broadband in rural areas. The bill passed the house but failed in the Senate Committee on State, Veterans, and Military Affairs.

Connecticut

The senate passed S.B. 366, requiring ISPs in the state to practice net neutrality and disclose network management practices. However, the house did not vote on the measure. H.B. 5260 and S.B. 2, which would have required ISPs to adopt net neutrality policies to qualify for state contracts, both failed in committee.

Georgia

Neither of the bills related to net neutrality introduced in the house or senate progressed out of committee. S.B. 310 would have required all ISPs to follow net neutrality, while H.B. 1066 would have prohibited the state from contracting with ISPs that don’t provide a certification of net neutrality.

Hawaii 

S.B. 2644, which would require ISPs to follow net neutrality and disclose network management practices, passed the senate unanimously, but its house companion, H.B. 2256, stalled in committee. The similar S.B. 2088 was deferred in committee.
In addition to requiring net neutrality, H.B. 1995 would have established a task force to examine the costs and benefits of a state-owned public utility to provide broadband internet service. Two of three house committees recommended passage of the bill, but the Finance Committee did not act on it.

Idaho 

H.B. 425, which would require ISPs to comply with net neutrality, was not acted on in committee.

Illinois 

H.B. 4819, which would have required state contractors to comply with net neutrality and other ISPs to notify consumers of any deviations from those principles, passed out of the House Cybersecurity, Data Analytics, and IT Committee, but the house re-referred it to the Rules Committee and did not vote on it.

Two other measures did not advance out of committee: H.B. 5094, which would have required ISPs in the state to abide by net neutrality, and S.B. 2816, which would have required ISPs to follow net neutrality to qualify for state contracts.

Iowa

Neither Senate File 2286 nor House File 2287, which would have required ISPs to provide service in accordance with net neutrality, advanced out of committee.

Kansas

H.B. 2682, which would have prohibited state contracts with ISPs that do not follow net neutrality, died in committee.

Kentucky

The Small Business and Information Technology committee did not act on H.B. 418, which would have required state contractors to practice net neutrality.

Maryland

H.B. 1654, which would prohibit state agencies from contracting with ISPs that do not follow net neutrality and require ISPs to notify customers about the types of personal data they collect and disclose, passed the house, but the senate did not vote on it. The similar H.B. 1655, which would also authorize local governments to grant franchises for broadband internet service, did not pass out of committee.

S.B. 287, which would require the state to only contract with ISPs that follow net neutrality, did not pass out of committee.

Massachusetts 

Senate Order S2263, establishing a special senate committee on net neutrality and consumer protection to review RIFO, was adopted January 18. The committee issued its report March 23 as S.B. 2376. This report accompanied S.B. 2336, a bill that would have required ISPs to follow net neutrality.

S.B. 2336 was replaced by S.B. 2610, which would direct the state Department of Telecommunications and Cable to create standards for a Massachusetts Net Neutrality and Consumer Privacy Seal to identify ISPs that abide by net neutrality and provide consumers with an easy way to opt out of providing third parties access to personal information. It would also establish a registry of broadband service providers in the state and list their network management practices and privacy policies. The bill passed the senate July 19 and has been referred to the House Ways and Means committee.

H.B. 4151, which would have required ISPs to follow net neutrality, was replaced by House Order 4684, authorizing the Committee on Telecommunications, Utilities, and Energy to study documents concerning several bills, including those on net neutrality. This order also covered H.B. 4222, requiring ISPs to follow net neutrality and establishing the Massachusetts Internet Service Provider Registry to provide service quality and pricing information to customers.

Minnesota

Two bills have been introduced in both the house and the senate that would require ISPs to follow net neutrality and prohibit state agencies and political subdivisions from contracting with ISPs that do not. None of the bills—S.B. 2880, S.B. 3968, H.B. 3033, and H.B. 4411—has been acted on in committee.

Missouri

H.B. 1994, which would require ISPs to follow net neutrality and publicly disclose their network management practices, was not acted on in committee.

Nebraska 

Legislative Bill 856, which would require net neutrality, was indefinitely postponed.

New Jersey 

S.B. 1577 and A.B. 1767, identical bills that would require all ISPs in the state to abide by net neutrality, have not been acted on by their respective committees.

A.B. 2131, which would prohibit the installation of broadband telecommunications infrastructure on public rights-of-way or underground facilities owned by public utilities or cable television companies unless the ISP follows net neutrality, was favorably reported out of committee. The senate has not acted on the identical S.B. 2458.

A.B. 2132, which would require state agencies to reject all contract bids from ISPs that do not follow net neutrality, was reported out of committee. The senate companion, S.B. 1802, has not been acted on in committee.

A.B. 2139, which would require cable companies that provide internet service to follow net neutrality principles, passed out of committee.

New Mexico 

H.B. 95 and S.B. 39 would amend the state Unfair Practices Act to require ISPs to follow net neutrality; both have been postponed indefinitely.

S.B. 155, which was similar to those bills but would also allocate $250,000 to the state attorney general in FY2018 and FY2019 to review RIFO and to file or join a lawsuit challenging the decision, was also postponed indefinitely.

New York

A.B. 8882, which would direct the state Public Service Commission to develop a plan for monitoring broadband ISPs and create a certification for ISPs that comply with net neutrality, passed the assembly June 19. Under this bill, only certified ISPs would be eligible for state agency contracts. The senate has not acted on its version, S.B. 7183.

Other bills have not made it out of committee, including: S.B. 8321, which would require net neutrality, provide regulatory control by the state Public Service Commission, prohibit zero-rating of certain content in a category but not the entire category, and require ISPs to comply with net neutrality to be granted permission to attach broadband infrastructure to utility poles; S.B. 7175 and A.B. 9057, which would require state agencies to contract only with ISPs that adhere to net neutrality and appropriate $250 million to a fund to establish municipal ISPs; and A.B. 9059, which would establish a commission to study and report on potential implementation of net neutrality rules.

North Carolina

Neither S.B. 736, which would have required ISPs to follow net neutrality, nor H.B. 1016, which would have applied only to state contractors, passed out of committee.

Oklahoma

S.B. 1543, which would have required state agencies to contract only with ISPs that follow net neutrality and created a fund to support municipalities attempting to create their own ISPs, was not acted on in committee.

Pennsylvania

H.B. 2062, which would have required ISPs to abide by net neutrality, did not make it out of committee. The same fate befell S.B. 1033, which also would have prohibited state contracts with ISPs that don’t follow net neutrality and required ISPs to disclose network management practices.

Rhode Island 

S.B. 2008, which would have required state agencies to award contracts only to ISPs that follow net neutrality, passed the senate June 19. The House Corporations Committee has not acted on it.

That committee recommended that H.B. 7076, which would require ISPs to follow net neutrality and require the state Division of Public Utilities and Carriers to annually certify ISPs, be held for further study. It made the same recommendation for H.B. 7422, which would require net neutrality and obligate ISPs to disclose their network management practices.

South Carolina

Neither H.B. 4614 nor H.B. 4706, which would have required ISPs to follow net neutrality and disclose their network management practices, passed out of committee.

South Dakota

The Senate Commerce and Energy Committee voted February 6 not to send S.B. 195 to the full senate, killing the measure. The bill would have required ISPs to abide by net neutrality and disclose network management practices to receive contracts from the state.

Tennessee

Several bills were introduced but did not pass out of committee, including H.B. 1755 and S.B. 1756, which would have required ISPs to abide by net neutrality and disclose their network management practices, and prohibit state agencies or local governments from contracting with ISPs that do not follow net neutrality; S.B. 2183 and H.B. 2253, which would have prohibited state governmental entities from contracting with ISPs that do not follow net neutrality; and H.B. 2405 and S.B. 2449, which would have created a task force to study issues relating to RIFO.

Virginia

H.B. 705, which would have required ISPs to practice net neutrality, stalled in the Commerce and Labor Committee.

S.B. 948, which would have required ISPs to practice net neutrality and prohibited them from knowingly disclosing personally identifiable information about customers, did not pass out of committee.

West Virginia 

Neither H.B. 4399, which would have required ISPs to practice net neutrality and disclose network management practices to receive state contracts, nor S.B. 396, which would have applied to all ISPs in the state, passed out of committee.

Wisconsin 

The assembly voted against taking up A.B. 909, which would have required ISPs to follow net neutrality and limited disclosure of personally identifying information. Senate counterpart S.B. 743 did not pass out of committee.

Neither S.B. 740 nor A.B. 908, which would have applied only to state contractors, were acted on by committee.

Resolutions

California 

In February, Senate Resolution (S.R.) 74, urging the US Congress to reinstate the 2015 rules, passed.

Delaware

Senate Concurrent Resolution 44, expressing the state assembly’s opposition to RIFO and urging the US Congress to enact legislation preserving net neutrality, passed the senate in January.

District of Columbia

A round table hearing was held in January 2018 on Proposed Resolution 22-0691 opposing RIFO. While it was cosponsored by all 13 members of the council, no vote has been taken.

Georgia

House Resolution 1161, a resolution that would have encouraged state agencies to establish policies requiring contract recipients to adhere to net neutrality, was introduced, but it did not progress out of committee.

Illinois

S.R. 1196, which would have urged the US Congress and the Trump administration to advocate for permanent adoption of net neutrality rules, did not advance out of committee.

Michigan

S.R. 131, which would have urged the governor to issue an executive order requiring ISPs with state contracts to abide by net neutrality, has not been acted on in committee.

Missouri

House Concurrent Resolution (H.C.R.) 84, which would urge the US Congress to pass legislation restoring net neutrality, has not been acted on in committee.

New Mexico

Senate Joint Memorial 17, urging the US Congress to review RIFO, passed, but the house postponed action indefinitely.

Ohio

The Committee on Federalism and Interstate Relations did not act on H.C.R. 18, which would have urged the president and US Congress to protect net neutrality and open internet access.