Tech & Telecom Law News

Democratic Election Wave Could Bring Tide of Net Neutrality Laws

Nov. 5, 2018, 9:01 AM

Potential Democratic statehouse and gubernatorial wins in the midterm elections may lead more states to line up against the Federal Communications Commission in the net neutrality fight.

Democrats hope they’ll gain full control of the New York, Colorado, Illinois and Minnesota state governments in the Nov. 6 balloting. Lawmakers in all four states told Bloomberg Law they would try to capitalize on those swings by advancing bills to bar internet service providers such as AT&T Inc. and Comcast Corp. from blocking or slowing data traffic flowing across their networks.

“It’s just a matter of seeing what party takes control of these legislatures and how effective they can be in passing net neutrality,” Yosef Getachew, media and democracy program director of public interest group Common Cause, told Bloomberg Law.

New net neutrality laws in those states would widen a multi-front legal war pitting the FCC and big internet service providers against state officials, public policy groups, and tech companies such as Mozilla Corp. and Vimeo Inc.

Lawmakers Ready

The biggest battle likely will happen in the New York State legislature, where Democrats failed to get a net neutrality bill through the GOP-controlled state Senate last session. Republicans are defending a one-vote Senate majority. State Sen. Brad Hoylman (D), who plans to introduce net neutrality legislation next session, said action on the bill depends on the outcome of the election. Democrats already control the New York State Assembly and the governor’s mansion.

“Republicans have blocked all consideration of net neutrality,” Hoylman told Bloomberg Law. “I don’t expect any change unless the Senate is flipped to Democratic control.”

Democrats need to pick up one seat to take control of the Colorado Senate. State Rep. Chris Hansen (D) told Bloomberg Law that a Democratic-controlled statehouse likely would move to adopt legislation he plans to reintroduce next year that would disqualify ISPs from receiving taxpayer funding from the state’s $100 million rural broadband program if they block, throttle or prioritize certain web content. Democrats already hold a majority of seats in the Colorado House of Representatives. Rep. Jared Polis (D), who supports net neutrality, is favored to succeed Democratic Gov. John Hickenlooper.

Net neutrality supporters also are watching Illinois, where Democrats control the state legislature but Republicans hold the governorship. Rep. Ann Williams (D) told Bloomberg Law that a victory for Democratic gubernatorial candidate J.B. Pritzker in his race with incumbent GOP Gov. Bruce Rauner would boost the chances for a new state net neutrality bill in 2019.

Williams plans to reintroduce a bill next year that would require state entities, including agencies and public universities, to contract only with ISPs that abide by net neutrality principles. Pritzker will fight for net neutrality to “ensure that all internet traffic is treated equally” in the state, according to a statement on his campaign website.

Republicans who control the Minnesota statehouse blocked net neutrality bills introduced by Democrats from advancing last session. State Sen. Ron Latz (D), told Bloomberg Law that a Democratic-controlled statehouse may clear a legislative path for a net neutrality bill he plans to reintroduce next year to advance to the governor’s desk. Democratic Rep. Tim Walz, another net neutrality supporter, is leading polls in the race to replace retiring Minnesota Gov. Mark Dayton (D).

Legal Battle

The FCC in December 2017 scrapped Obama-era rules that barred internet service providers (ISPs) from blocking or slowing access to legal web content, and from charging online companies for faster access to users. Tech companies, public policy groups and attorneys general from 22 states and the District of Columbia are challenging the move in court.

California, Washington, Oregon and Vermont have already adopted their own net neutrality laws since the FCC repealed the Obama-era rules. The FCC and broadband industry groups have launched their own challenges to California’s law. Industry groups also have sued to block Vermont’s law.

The administration argues that the federal government has jurisdiction over the internet because it involves interstate commerce. But states and other net neutrality opponents say that states can step in because the FCC abandoned its regulations. California agreed not to enforce its new law until challenges to the FCC rules rollback play out in the U.S. Court of Appeals for the District of Columbia Circuit. Oral argument in that case is scheduled for February.

To contact the reporter on this story: Jon Reid at jreid@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.