Fourth U.S. state governor orders net neutrality in government contracts

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Sunday, February 18, 2018

File photo of Vermont Governor Phil Scott.
Image: Embassy of the United States, Ottawa. (Reuse terms.)

On Thursday, Phil Scott of Vermont became the fourth governor in the United States to sign an executive order requiring all companies providing Internet access to state agencies to abide by net neutrality for all customers in his state. He said he did this because Vermonters rely on Internet access without blocking, throttling and paid prioritization, threatened by the December 14 decision of the US Federal Communications Commission (FCC) in the matter of "Restoring Internet freedom". The first state governor to challenge the FCC in this way was Steve Bulllock of Montana, who did so on January 22. Andrew Cuomo of New York followed two days later. Philip Murphy of New Jersey signed a similar executive order on February 5. These four executive orders differ in details, but all require that state agencies purchase Internet access services only from companies with an enforceable commitment to net neutrality for all customers in their state.

This is part of a flurry of state-level net neutrality actions. The New York State Assembly introduced bill A01958 on January 17, 2017, three days before the inauguration of Donald Trump as President of the United States, anticipating action by him to overturn the 2015 "Title II Order" that made net neutrality enforceable in the US. Two other bills were introduced into the Washington House of Representatives in the ten days before the official decision of Trump's FCC on this issue. In addition to these, 63 other state-level responses by net neutrality supporters were documented by Fight for the Future (FFTF) by February 16, 2018, including at least 27 bills introduced into the legislatures of 17 states with others reportedly under consideration.

These bills are in addition to the lawsuit filed on January 16 by the Attorney General of New York on behalf of 21 states and the District of Columbia claiming this FCC decision was "arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act" (APA) of 1946 and other grounds. These states were New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington state. New Jersey reportedly later committed to join the suit.

These four executive orders are the only actions on FFTF's list of actions by net neutrality supporters that seem immediately enforceable. All others require approval by democratic bodies. The four executive orders might be challenged in courts as conflicting with "Preemption authority" claimed by the US Federal Communications Commission's "Declaratory ruling, report and order" adopted December 14 and released January 4. The FCC order was described by dissenting Commissioner Clyburn as "Destroying Internet Freedom" rather than "Restoring Internet Freedom" as the order is titled. She wrote that this order "will put profits and shareholder returns above what is best for" consumers.


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