Some Democrats to Offer State Net Neutrality Legislation

Biden is expected to quickly exit a DOJ lawsuit challenging California’s net neutrality law (see 2012020045). National rules may not come immediately, with the FCC potentially at a 2-2 stalemate for some time and Congress possibly under split control. The FCC declined to comment last week.

“Nothing is ever guaranteed in the federal government,” said Connecticut Senate Majority Leader Bob Duff (D), who plans to reintroduce his net neutrality bill in January, with a hearing later that month or in February, he told us. Duff said he appreciates Biden’s net neutrality support, and national rules would be best, but “the way Washington works is sometimes a mystery to the rest of us,” he said. “It’s important for us to work on these things on multiple fronts.”

Connecticut couldn’t pass net neutrality in previous years due to a “tremendous amount of opposition from lobbying groups” and “myriad excuses” not to move forward, including waiting for the Mozilla decision by the U.S. Court of Appeals for the D.C. Circuit, said Duff. A 2018 bill cleared the Senate but got stuck in the House. The D.C. Circuit cleared a path for states in late 2019, but COVID-19 shut down the 2020 session before lawmakers could act, he said. The majority leader sees momentum, with more legislators understanding the issue and rising concern about internet data caps. Duff plans to talk with the state House’s new speaker for 2021, Matt Ritter (D).

“At least for the next session, it’s just as critical” to pass a net neutrality bill, because the FCC’s composition won’t immediately change, and the federal government likely will be divided, said Massachusetts Sen. James Eldridge (D). Even if the next FCC acts, a subsequent commission could again reverse national rules, said the Senate chair of the Joint Judiciary Committee. Eldridge, who plans to refile his bill the third week of January, attributed the state’s inability to pass a bill in previous years to “the power of corporate lobbyists” from ISPs.

Less Pressure

Biden winning “may take some of the pressure off” to pass a New York law, said Assembly Member Patricia Fahy (D). With Chairman Ajit Pai leaving the FCC, “we expect to have someone who is a little more ... interested in protecting net neutrality,” said the vice chair of the Majority Steering Committee. “The worst is over.” Fahy hopes to revive her bill to “stress the absolute urgency” for regulations, she said. “It won’t be changed overnight in D.C.”

The New York Assembly passed Fahy’s 2019 bill, but it stalled in the Senate despite Democrats controlling both chambers. The Senate’s competing bill and ISPs' opposition were factors, Fahy said. COVID-19 “upended everything,” cutting last year’s session in half and making it tougher for lawmakers to negotiate, she added. Fahy plans to restart talks with Senate Telecom Committee Chairman Kevin Parker (D), possibly next month after legislators reconvene, she said. Parker didn’t comment.

“I don’t feel like I’m under the gun for net neutrality,” New York Assembly Internet Subcommittee Chair Clyde Vanel (D) told us. He hasn’t seen problems necessitating a rush for a state law, he said. Vanel previously filed a bill in response to President Donald Trump's action and now hopes the FCC under Biden revives the 2015 net neutrality rule. It would be better for Congress to pass a federal law than leave it to the agency, he noted.

New York should still pass a law, said Sen. Brad Hoylman, another state Democrat who had a bill. “While the Trump presidency is reaching its end and the Biden Administration is expected to fight for the return of net neutrality, states must take every measure possible to protect free speech and the rights of consumers,” he emailed: A state law would keep the internet open for “New Yorkers regardless of who occupies the Oval Office.”

Maryland Delegate Kirill Reznik (D) isn’t sure he will revive the bill he proposed, which failed in 2018, 2019 and 2020. “With the Biden Administration coming in, there is a fair chance that a new Democratic majority on the FCC will reinstate the Net Neutrality principles, and the urgency for my legislation will subside,” he emailed. As an appropriator in a truncated session, Reznik must focus on the state budget, he said. “I still believe we need legislation as FCC rules only exist at the behest of the administration in office.” States should push for legislation while Congress is unwilling to act, he said.

Missouri Rep. Mark Ellebracht (D) prefiled a net neutrality bill Dec. 1 for the next session. HB-193 would empower the state attorney general to enforce rules while setting up a process at the Missouri Public Service Commission to seek waivers from the paid prioritization ban if the petitioners shows a significant public interest benefit and it doesn’t harm internet openness. Ellebracht didn’t comment now.

Republicans increased control of statehouses in November’s election to 31 legislatures, compared with Democrats’ 18, emailed Jonathon Hauenschild, American Legislative Exchange Council Communications and Technology Task Force director. “Net neutrality proposals introduced in Republican-controlled states do not really move in the legislative process.” Some states may wait for the outcome of the California litigation, where ISPs are also plaintiffs, while COVID-19 means state budgets and economic recovery may take priority, he added.