This crafty tactic may let states get around the FCC on net neutrality

State governments are becoming pivotal players in the battle over net neutrality. In recent weeks, legislatures from California to Massachusetts have introduced bills aimed at restoring the Federal Communications Commission's broadband rules, which banned Internet providers from arbitrarily speeding up or slowing down websites.

The initiatives have put states on a collision course with the FCC. But now a new tactic gaining momentum among governors threatens to complicate the debate further. Their novel approach, analysts say, is largely untested in court — and it could drive the fight over the Internet's future into hazy legal territory.

New Jersey Gov. Phil Murphy (D) this week became one of the latest to adopt the strategy, signing an executive order that effectively forces Internet service providers (ISPs) that do business with the state to abide by strong net neutrality rules.

Rather than directly regulating the broadband industry, the executive order imposes procurement obligations on state agencies. Under the order, state officials contracting with ISPs for service may do so only if the providers agree not to block or slow websites, or to offer websites faster delivery to consumers in exchange for an extra fee.


As a large consumer of Internet service, said Murphy, the state may be able to pressure ISPs into granting New Jersey residents the same equal-access protections afforded to the government.

“While New Jersey cannot unilaterally regulate net neutrality back into law or cement it as a state regulation,” Murphy said, “we can exercise our power as a consumer to make our preferences known.”

The decision comes weeks after Montana and New York officials signed virtually identical orders. The state of Hawaii this week also joined the group.

The orders could contradict the FCC's new rules on net neutrality, which claim to “preempt any state or local requirements that are inconsistent” with the agency's deregulatory agenda. (The FCC declined to comment.) But whether a court will agree with the FCC's approach is unclear. The debate over net neutrality is headed into uncharted waters, analysts say.

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OLYMPIA, Wash.) — Washington became the first state Monday to set up its own net-neutrality requirements after U.S. regulators repealed Obama-era rules that banned internet providers from blocking content or interfering with online traffic.

“We know that when D.C. fails to act, Washington state has to do so,” Gov. Jay Inslee said before signing the measure that lawmakers passed with bipartisan support. “We know how important this is.”

The Federal Communications Commission voted in December to gut U.S. rules that meant to prevent broadband companies such as Comcast, AT&T and Verizon from exercising more control over what people watch and see on the internet. The regulations also prohibited providers from favoring some sites and apps over others.

Because the FCC prohibited state laws from contradicting its decision, opponents of the Washington law have said it would lead to lawsuits.

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