States’ rights salvo latest shot in ongoing battle

Brevity in the Machine

If there is an inverse correlation between the written length of a law and its effectiveness, Washington State House Bill 2282 will have a major impact.

In an environment where legal measures are routinely pilloried for outrageous length – “Is there any one person who read this bill?” or “How many forests were cleared to print this?” – HB 2282 runs a modest five pages. But this short bill is the latest landmark in a lengthy struggle between competing industry interests and the FCC commissioners regarding the extent to which it should regulate broadband access – the so-called open internet.

Buffered Drama

Back in December 2017, we addressed the rollback of certain of President Obama’s net neutrality provisions by President Trump’s appointee to the Federal Communications Commission. The FCC removed net neutrality limitations on ISPs, allowing them significant leverage over the internet traffic that flows through their services, subject to some to-be-determined guardrails.

Enough leverage, net neutrality advocates maintain, to block or censor content and even charge more for faster speeds or for certain types of service (consumers might pay extra to stream movies, for example).

Rollback advocates countered that freeing the ISPs from onerous regulation would create greater business opportunities on the internet, stimulating innovation and economic growth.

The Takeaway

With the passing of HB 2282, Washington state became the first state in the country to institute its own net neutrality law. Others will certainly follow, as will constitutional challenges to the states’ authority.

The law allies itself unequivocally with net neutrality advocates, requiring ISPs (defined as broadband internet access service providers) to share accurate information about their networks, including management practices and commercial terms of service. And the law also forbids ISPs from blocking lawful content and from changing speed or service based on the traffic’s content or the price paid by the user for access.

There are several interesting aspects to the law, but it is especially noteworthy that the legislature defined the law as an extension of Washington’s Consumer Protection Act. A violation of the new law will be treated as “an unfair or deceptive act in trade or commerce and an unfair method of competition” under the act.

With other states advancing their own pushback to the FCC – more than 20 state legislatures are exploring similar measures, and several governors from New York to Montana have signed executive actions – several questions are raised. How will the commission respond to the new laws when it has previously asserted its authority over the entirety of internet traffic? Do the state laws create a constitutionally impermissible burden on interstate commerce? And, if the laws survive, how will ISPs shape their pricing and advertising rules to respect the differences between neutral and non-neutral states?