It seems that our slippery friend #BloggerCandidateForum managed to escape on Wednesday for a holiday break. Probably a good idea since the coming year will bring an extremely important mid-term election and the Forum wants to be rested and ready to go. However, before the little devil ducked out, he did manage to leave us with a few things to talk about this week and next. First on the blog, #NetNeutrality.
The Federal Communications Commissions voted on December 14, 2017 to repeal #NetNeutrality regulations enacted during President Barack Obama's tenure. If that was not bad enough, the FCC, led by Chairman Ajit Pai, went one step further: banning local and state governments from taking action on their own to preserve #NetNeutrality within their own borders.
Adam Sneed writes in his CityLab article "What Can Cities and States Do About Net Neutrality?," It's a preemption effort that isn't sitting well with local leaders across the country." A week prior to the 3-2 vote in favor of the repeal, sixty-eight mayors and county official wrote Chairman Pai to say that they were,
...deeply disturbed by the Commission's efforts to preempt our ability to protect consumers and businesses in our communities... (boston.gov; Dec. 7, 2017; date accessed Dec. 26, 2017)
However, Republican FCC Commissioners Michael O'Rielly, who voted with Chairman Pai and another commissioner in favor of the repeal, told CityLab that he favored even stronger preemption measures.
Commissioner O'Rielly said,
Broadband services is not confined to state boundaries and should not be constrained by a patchwork of state and local governments...A hodgepodge of state rules could severely curtail not only the next generation of wireless systems that we have been working so hard to promote, but also the technologies that may rely on these networks in the future...I would actually go even further on preemption, but I could only carry the debate so far today.
Thus far, the much detested vote is not preventing some state and civic officials-most of who are Democrats-from announcing that "they'll attempt to create their own version of net neutrality." Mr. Sneed writes, "Broadly speaking, they opposite the FCC's move to allow broadband providers to serve some websites faster or slower than others, or block some altogether." This is where we tread into censorship territory.
Washington Governor Jay Inslee announced on December 13, his state will enforce its own version of #NetNeutrality (spokesman.com; Dec. 13, 2017; date accessed Dec. 26, 2017) by sanctioning those broadband providers that hold user content hostage, by either blocking it or extorting additional fees for apps and services. New York Governor Andrew Cuomo also tweeted a defiant message, saying,
Today's ruling by the FCC is dangerous. The Internet must remain free and open to all
New York will take all necessary steps to protect #NetNeutrality (10:32 AM; Dec. 14, 2017; twitter.com/@NYGovCuomo; date accessed Dec. 26, 2017)
In California, the home of Silicon Valley, state Senator Scott Wiener announced his intention to introduce legislation requiring #NetNeutrality in California (hackermoon.com; Dec. 14, 2017; date accessed Dec. 26, 2017)
Before the ink was even dry on the vote, state and local governments declared their intentions to sue the FCC (arstechnica.com; Dec. 14, 2017; date accessed Dec. 26, 2017). Mr. Sneed reports, "This includes attorney generals from New York, Washington, Massachusetts [bizjournal.com; Dec. 14, 2017; date accessed Dec. 26, 2017], and Iowa [desmoinesregister.com; Dec. 14, 2017; date accessed Dec. 26, 2017], and officials from Santa Clara County,..." The FCC does have the authority to regulate interstate communication law, and the majority Republican commission did cites the Constitutions's Commerce Clause to bolster their case. Preempting laws in favor of cities is something the commission has done before.
The preemption clause is destined to play a prominent role in the legal. The final language is still ambiguous and the repeal will not be made public until it is published in the Federal Register, which could take weeks. Be that as it may, the latest available draft (transition.fcc.gov; date accessed Dec. 26, 2017) contains broad language that prevents states and cites from continuing to enforce the rules that the FCC repealed or decided not to impose. Adam Sneed observes, "That's vague enough that it could be interpreted to challenge any attempted legislation that affects broadband providers." Also, cities would not be able to enact, more stringent requirements for any aspect of broadband service that we address in this order...(Ibid). Specifically, states cannot force broadband providers to disclose anymore information than required by the Federal Communications Commission and, in all likelihood, cannot impose further consumer privacy protections.
Angelina Panettieri, principal associate at the National League of Cities, told CityLab,
This order is another nibble away at local authority,...That's in keeping with what this FCC has been doing all year in terms of preempting cities, and in terms of painting states and cities as the enemy of broadband deployment.
Therefore, the issues of consumer protection looms large for civic leaders. The FCC also decided, at the time of the vote, that it would no longer be the chief regulator of broadband providers. Instead, it will divided the duties with the Federal Trade Commission, in a similar manner when the #NetNeutrality order took effect in 2015. This is a move intended to "weaken the regulatory structure around broadband providers. By broadly preempting states and cities, there's concern that government agencies at all levels will have too high a barrier to taking action."
Ms. Panettieri continued,
There's some very broad language in the order that could be used as a weapon against cities by [the telecom] industry in the future,...The preemption ensures that there's no federal watchdog and there isn't allowed to be a state or local watchdog.
"Net neutrality, city by city'
The obvious legal challenges aside, there are a few strategies available to states and cities in order preserves elements of #NetNeutrality rules but it will require some infrastructure investment. Adam Sneed cities the example of the more than 500 communities that have ready built their own Internet infrastructure (muninetworks.org; date accessed Dec. 26, 2017), like Chattanooga, Tennessee's much lauded municipal fiber network. Mr. Sneed writes, "These networks are often competitors to corporate providers, expanding broadband service to homes and communities that aren't served by private operators." They can force private companies to offer more competitive pricing and service in an area. They also allow government providers to establish their own rules regarding equal access.
Since building its own high-speed network, a sort-of tech scene as materialized in Chattanooga. Mayor Andy Berke told CityLab, "that he worried that the economy could suffer if larger tech competitors pay to get into broadband 'fast lanes' that local startups can't afford." He said,
We need to make sure people understands what's at stake,...If you're in a place where you have a growing tech ecosystems, you want net neutrality to remain. ...Much of our high growth comes from the higher wages of the tech world.
However, building a high-speed network, like Chattanooga's, is not a simple thing to do for a number of reasons. Among the reasons are "19 states have laws that prohibit or severely limit a cities' ability to do that." In an aside, Mr. Sneed notes, "Chattanooga's network was the subject of its own preemption battle at the FCC in 2015: the agency voted to block state laws that banned the city's network from expanding. The state sued the FCC and ultimately won [arstechnica.com; Aug. 29, 2017], leaving the state preemption law intact."
According to Christopher Mitchell, the director of the Community Broadband Networks Initiative at the Institute for Local Self-Reliance, there alternate, more simple methods for achieving the same results. "If cities are preempted from passing laws or regulations around net neutrality, they can still enter into contractual agreements with providers-but the city has be able to provide something for the companies to make that happen." One example is Lincoln, Nebraska which built a conduit for telecommunications companies to house their cables if they committed to connecting everyone in the city. Broadband cooperatives are popular in rural communities not served by the telecom companies and provider another type of protection "by allowing residents to decide how their own network will be run."
This may sound promising but it will not completely save #NetNeutrality because a local network can still pick and choose which content to block or prioritize content, "but the cast majority of sites and services consumers use are on other networks with other providers."
Building a local network or a quid-pro-quo agreement is a costly enterprise. Mr. Mitchell suggests, "the best option is for cities to get started now, so they don't get too far behind." He continues,
We've been saying for years that cities can't rely on the FCC to protect them,...Cities need to recognize that they need to have more a say in the future of essential infrastructure [and] need to start making investments. They earlier they start with modest investments, the better.