Last week, Montana Gov. Steve Bullock (D) signed an executive order enforcing net neutrality among all internet service providers who want to do business with the State of Montana. New York soon followed suit with a similar order preventing the state from purchasing services from an ISP that doesn't follow net neutrality.
Bullock's order, though, is broader, stipulating that "ISPs that accept contracts to provide Internet service to any state agency must agree to abide by net neutrality principles throughout the state." That means that if they want to do business with the state, they have to operate under net neutrality for all their customers. They expect the FCC and/or ISPs to sue, and they had a fact sheet all ready, the legal groundwork all explained.
ISPs are free to violate net neutrality if they only serve non-government customers—they just can't do so and expect to receive state contracts. "Companies that don't like it don't have to do business with the State—nothing stops ISPs from selling dumpy Internet plans in Montana if they insist," the fact sheet says. […]
"Through the order, the State of Montana acts as a consumer—not a regulator," the fact sheet says. "Because there's no mandate, and no new regulations, there's certainly no federal preemption. Companies that don't like Montana's proposed contract terms don't have to do business with the State."
Montana further argues that it would be on solid ground even if it did enforce net neutrality via a law instead of the executive order. When the FCC repealed its own net neutrality rules, it also deregulated broadband providers by renouncing its authority to regulate them as common carriers under Title II of the Communications Act.
"The FCC felt it needed to reclassify broadband under Title II to protect net neutrality principles [in 2015]," Montana says. "So when the FCC retreated back to Title I in December [2017], it's unclear how the FCC can simultaneously claim that it doesn't have the power to impose net neutrality principles under Title I yet preempt states from doing the same."
The fact sheet goes on to point out that the ISPs are also on shaky ground, "trying to have it both ways, too." After the the open internet rule was adopted, the fact sheet points out, "ISPs argued that the FCC lacked the power under Title II to preempt certain state laws that ISPs favored. Now, under Title I, ISPs are claiming broad, preemptive authority by the FCC. Both can't be true."
The governor's legal advisers clearly thought this one through, and are well prepared should the legal challenges come.
Let's keep up the fight against Trump's FCC and Big Cable. We can still stop them. Tell Congress to oppose Trump FCC's plan to destroy net neutrality and the open internet.