In a development which may challenge the authority of the FCC to preempt state regulation of Internet service, New York Governor Andrew Cuomo (D) signed an executive order this week which prohibits state government agencies from entering into contracts for Internet service unless the Internet service provider (ISP) adheres to certain defined principles of net neutrality. Issued on Wednesday, the order responds to the FCC’s decision last December in the “Internet Freedom” proceeding revoking the FCC’s previous classification of broadband Internet access as a Title II telecommunications service which is subject to common carrier regulation. That ruling also reversed net neutrality rules, enacted by the FCC in the 2015 Open Internet order, which barred broadband ISPs from throttling, blocking, or otherwise impairing the transmission of lawful Internet content and engaging in paid prioritization.
Reflecting a similar directive signed Tuesday by Montana Governor Steve Bullock (D), Cuomo’s order defines net neutrality to mean that “ISPs will not block, throttle or prioritize Internet content or applications or require that end users pay different or higher rates to access specific types of content or applications.” California legislators are also considering a measure that would prohibit ISPs in that state from “taking certain actions regarding the accessing of content on the Internet by customers," which include impairment, blockage or degradation of lawful web traffic. Under the executive order, which goes into effect on March 1, affected New York state agencies may not enter into any new or renewed contract for Internet service unless the ISP agrees to be bound to contract provisions which mandate compliance with the aforementioned principles of net neutrality. Although the Internet Freedom order enacted by the FCC specifies that state or local regulation of the Internet is preempted, experts say the New York executive order could circumvent the FCC as it directly regulates the procurement activities of state agencies instead of the Internet or ISPs. Nevertheless, Cuomo confirmed in a press statement that the goal of the executive order is to “help ensure that the Internet remains free and open to all,” as he promised that New York state officials “will do everything in our power to protect net neutrality.”
Meanwhile, on the same day that Cuomo issued his executive order, AT&T CEO Randall Stephenson published a full page open letter in major U.S. newspapers which calls on federal lawmakers to enact an “Internet Bill of Rights” by “writing new laws that govern the Internet and protect consumers.” Like Verizon and other major telcos that support the Internet Freedom order, AT&T has advocated for a legislative solution to issues of net neutrality. As he argued that a legislative fix would put an end to the regulatory uncertainty which results when “courts have reversed regulatory decisions” and when “regulators have reversed their predecessors,” Stephenson proclaimed that legislation “would not only ensure consumers’ rights are protected, but it would provide consistent rules of the road for all Internet companies across all websites, content, devices and applications.” Stephenson further maintained that the need for such legislation has become more critical with the advent of self-driving cars, remote surgery and other advancements made possible by fifth-generation wireless networks, warning that, “without predictable rules for how the Internet works, it will be difficult to meet the demands of these new technology advances.”
Notwithstanding what he described as his company’s continued, voluntary adherence to principles of net neutrality, Stephenson declared that “the commitment of one company is not enough.” As such, Stephenson wrote: “that’s why we intend to work with Congress, other Internet companies and consumer groups in the coming months to push for an ‘Internet Bill of Rights’ that permanently protects the open Internet for all users and encourages continued investment for the next generation of internet innovation.”