Why the first state with a net neutrality law isn’t scared of lawsuits

Washington, the first US state to pass a net neutrality law after the repeal of federal rules, might have to get ready for a court battle.

Washington's legislature and governor defied the Federal Communications Commission's claim that states cannot implement their own net neutrality rules, and they are likely to face a lawsuit from Internet service providers or their lobby groups. But the legislation's primary sponsor, State Rep. Drew Hansen (D-Bainbridge Island), is confident that the state will win in court.

Hansen is also a trial lawyer and has litigated preemption questions, he told Ars in an interview this week.

"The FCC doesn't have preemption authority just because it says so," Hansen said.

FCC abandoned authority over broadband

Hansen's net neutrality bill was opposed by wireless industry lobby group CTIA, which represents AT&T, Verizon Wireless, T-Mobile, Sprint, and other mobile carriers. The bill was also opposed by the Broadband Communications Association of Washington, which represents Comcast, Charter, Wave Broadband, and others.

The state law will prohibit home and mobile Internet providers from blocking or throttling lawful Internet traffic and from charging online services for prioritization. The state law is slated to take effect after the FCC finalizes its repeal of net neutrality rules.

An ISP or trade group could sue the state in an attempt to nullify the state law.

"I think practically it would be one of the telecommunications companies or trade associations that would file a lawsuit and raise preemption challenges," Hansen said.

Litigants would point to the parts of the FCC's net neutrality repeal order that purport to preempt state net neutrality laws. But that isn't necessarily a slam dunk.

As we noted in a previous article, the FCC said in the repeal order that it lacks authority to regulate Internet providers as common carriers. There's good reason to think the FCC is wrong about this, since a federal appeals court found in 2016 that the FCC does have that authority, though it doesn't have to use it if it prefers not to.

But that's not the crucial point when it comes to preemption of state laws. What's important is that the FCC's Republican leadership abandoned its authority to strictly regulate broadband, while simultaneously claiming that it has the authority to prevent states from strictly regulating broadband. That's where the FCC argument fails, Hansen said.

"Here is the oddity of the position that they're taking in the net neutrality repeal," Hansen said. "They're saying the Communications Act lacks any authority that would give them the ability to impose broad standards of conduct on the Internet but grants them broad sweeping authority to preempt state consumer protection laws related to the same area. It's not clear to me how this can be the case."

Legal hurdle

One possible problem for Washington is the "dormant commerce clause."

This legal principle concerns "whether states can constitutionally reach beyond their borders for economic regulation when Congress is silent in its lawmaking role," Electronic Frontier Foundation (EFF) Legislative Counsel Ernesto Falcon told Ars recently:

"When Congress has nothing really written in law, then it's a dormant commerce clause question where states are restricted in two ways," Falcon said. "1) They can't discriminate against out-of-state economic actors in favor of in-state actors and 2) They can't unduly burden interstate commercial activity and must have a strong state interest."

Falcon thinks the dormant commerce clause will make state net neutrality laws vulnerable to legal attack unless states use indirect regulatory approaches, such as requiring recipients of state broadband subsidies or state contracts to abide by net neutrality.

Hansen disagrees.

"The test is whether something substantially impairs interstate commerce," he said. "The states all the time write consumer protection laws related to the Internet without dormant commerce clause problems. Just because the Internet is nationwide does not equate to 'the states cannot regulate conduct on the Internet.'"

It's clear that ISPs know how to distinguish between Internet users in one state and users from another and would be able to impose different net neutrality regimes in each state if they chose to do so, he said.

“The industry was opposed and the public was in favor.”

Although the FCC argued that the interstate nature of the Internet should preclude state net neutrality rules, the repeal order never mentioned the dormant commerce clause.

One state requiring net neutrality wouldn't conflict with other state laws, Hansen also argued. There aren't any state laws that require ISPs to block or throttle lawful Internet traffic, so the Washington net neutrality law isn't prohibiting anything that other states require, he said.

“We do still live in a democracy”

Washington's legislature held several hearings on the net neutrality legislation before voting it through. "The industry was opposed and the public was in favor," Hansen said. "And you know, we do still live in a democracy, so that still matters."

ISPs and broadband lobby groups have complained that they don't want a "patchwork" of 50 state laws. But ISPs abide by different consumer protection laws in different states already, Hansen noted.

"If ISPs are so concerned about a patchwork of state laws that possibly conflict, perhaps they should not have lobbied for the FCC to eliminate national laws," he said.

Hansen's net neutrality bill was approved in the state House by a vote of 93-5 and in the Senate by a vote of 35-14. Both the state House and Senate are split nearly down the middle, with Democrats holding a slim advantage. Democrats have a 50-48 advantage over Republicans in the House and a 25-24 advantage in the Senate.

"In Washington, we do have a long tradition of working across party lines for common-sense consumer protections whether on the Internet or elsewhere," Hansen said.

Hansen worked with Republican state Rep. Norma Smith on the net neutrality legislation, he said. The bipartisan duo also worked together on a broadband privacy bill that would have replaced the US-wide privacy protections repealed by the federal government last year. That bill wasn't passed, but Hansen said he hopes to get it through in the next legislative session.