Top Mass. Senators Privately Gather Caucus on Net Neutrality, ISP Privacy

The Massachusetts Senate Ways and Means Committee next month likely will weigh the special committee’s March 23 report and SB-2336, and Thursday’s presentation was to hear questions and concerns, said Creem. The PowerPoint presentation defined net neutrality and ISP privacy rules, explained repeals by the FCC and Congress, described the multistate attorney general suit against the FCC and gave an overview of other states’ legislative and executive actions. “Just because the FCC claims that it can preempt states from legislating in this area does not mean that the FCC, in fact, has that authority under the Telecommunications Act,” said one slide. “Congress is the ultimate authority on preempting state action, not Federal agencies. Congress has not updated the Act since 1996, before the Internet really took off.”

The presentation is “sort of elementary because some people don’t quite understand what net neutrality is,” Creem said. “Some people are afraid to it do it because we are being lobbied pretty heavily” by Verizon and Comcast, she said. Some senators ask why they should support a bill if it’s going to get pre-empted, she said. Creem’s “game plan” is to say a court could throw out an outright ban, but “we’ve come up with some other things that … can withstand pre-emption.”

Tarr participated in Thursday's presentation to senators, and largely supports the major components of the proposed bill, a Tarr spokesman said. Senators seemed "receptive" at the "lively" Thursday caucus, Creem said afterward.

The proposed bill would ban blocking, throttling and paid prioritization and set up other mechanisms in case a court finds that policy is pre-empted, Creem said. It would direct state agencies to prefer net-neutral ISPs for contracts and create a state ISP registry requiring companies to share FCC technical disclosures with the Massachusetts Department of Telecom and Cable, which would rate the company and give out approval seals to net neutral companies. The bill would clarify localities’ right to do municipal broadband. An outright ban would have higher impact than requiring a preference in state contracts, but may be tougher to defend in court, said Creem staff attorney Sarah Chase. State ISP contracts are worth about $183,000 annually, she said

Creem said it's important to get GOP support from Tarr, who read and supported the slides. “In Massachusetts, we do try to cross party lines,” she said. Republican state senators are few and tend to be more progressive on social issues, much like Gov. Charlie Baker (R), she said. Tarr felt similarly to Creem about privacy and net neutrality, though he didn’t support her initial idea to create a commission funded by ISP taxes, she said. Industry lobbying may be having more impact in the House, which has more right-wing Republicans, and Baker’s position is unclear, but Creem hopes Senate passage will drive momentum, she said.

Industry officials who testified state action is pre-empted never got back to Creem after she asked, at a March hearing, if they would consider signing a memorandum of understanding, the Senate majority leader said. Industry witnesses said they would think about the MOU to affirm ISPs will adhere to principles they promised to voluntarily follow (see 1803280042).

If enough states make net neutrality rules, industry will press for federal rules, Creem said. A federal law is “my first choice” but “looking unlikely,” she said. “If the federal government isn’t going to step up, the states have to.”

It’s unclear how FCC repeal of net neutrality will affect state broadband deployment, Massachusetts Broadband Institute Chair Peter Larkin said in an interview. The broadband grant provider wrote in a March 20 letter to Creem that impact is unknown, but the FCC action “opens up the potential for new fees to be assessed within these other relationships and contracts that could drive up costs that customers might have to bear or affect the speed customers are able to access.” The other side, said Larkin, is that ISP tools such as service tiering may bring in more revenue to fuel more broadband investment, he said. Larkin is “agnostic” because MBI’s priority is extending broadband to people with no access: “Don’t get on your high horse.”

The New England Cable and Telecommunications Association wants "bipartisan federal legislation that would help grow our local economy while promoting lasting consumer protections and avoid a patchwork of state rules," emailed NECTA General Counsel Timothy Wilkerson. Comcast and Verizon didn't comment.

Vermont

Vermont's Legislature sent its net neutrality bill to the governor Wednesday (see 1805140060). “Go ahead and sue us,” said SB-289 sponsor state Sen. Ginny Lyons (D) in an interview.

The Trump administration policy exceeded congressional intent, Lyons said. Industry says it’s following net neutrality voluntarily, but “people change their minds,” she said. Industry lobbyists fought the bill “very hard,” Lyons said. During House-Senate conference, “all we heard about were the potential lawsuits that we’re going to have and how no one else is doing this,” the state senator said.

The bill restricting state contracts to net-neutral ISPs is stronger than Gov. Phil Scott’s (R) similar executive order, which has exceptions for emergencies, Lyons said. Executive orders can be withdrawn, she added. The executive order will control until April 15, under an edit made during conference, Lyons said. The bill would require the state AG to report this December with recommendations that could set up a second phase of legislation on net neutrality and privacy next year, she said.

Vermont’s rural geography drives its perspective on internet issues more than political party; bipartisan agreement let state lawmakers pass the bill by voice rather than roll call, Lyons said. Scott representatives sat in on the House-Senate conference and didn’t say he will oppose, she said. The governor, who didn't comment, has 30 days to decide whether to sign.