Connecting state and local government leaders

Blackburn Seeks to ‘Preempt State Law With Respect to Internet Openness’

U.S. Rep. Marsha Blackburn

U.S. Rep. Marsha Blackburn Shutterstock


Connecting state and local government leaders

The chair of the House Communications and Technology Subcommittee hopes to set post-net-neutrality rules for internet service providers—and ensure that states don’t interfere.

WASHINGTON — U.S. Rep. Marsha Blackburn introduced a bill Tuesday that would follow the Federal Communications Commission’s net neutrality repeal last week with new rules of conduct for internet service providers, as well as preemption of state or local authorities “with respect to internet openness obligations.”

In a video released of her preparing to introduce the bill, the Tennessee Republican touts “The Open Internet Preservation Act” as being a bill “to preserve a free and open internet.”

“We can do this now that Chairman [Ajit] Pai has successfully done his job of getting the net neutrality rules off the books,” Blackburn stated.

The bill would permanently designate internet service as a Title I “information service,” effectively halting the FCC from reinstating the Title II "telecommunications service" designation that the repealed net neutrality rules were based upon.

To ensure states and local governments don’t try to fill the void, Blackburn’s bill preempts “any law, rule, regulation, duty, requirement, standard, or other provision having the force and effect of law relating to or with respect to internet access service.”

The preemption language in the bill is both vague and broad. It would likely throw into jeopardy any transparency, privacy, or other consumer protection actions states may try to assert the rights to enact following the repeal of net neutrality rules. However, it could also call into question long-standing state and local functions, such as management and regulation of physical wireline and wireless facilities, as well as requirements that cable and telecommunications companies serve citizens equitably. 

“When Chairman Ajit Pai and the FCC reclassified broadband as a Title I information service, they eviscerated the FCC’s authority to protect consumers on non-net neutrality issues such as access for the disabled, authority over emergency 911, protection against monopoly price gouging, and privacy and data breach protections,” Chris Lewis, vice president of Public Knowledge, an open internet public interest group, explained in a statement.

If the bill passes, it is possible that state and local governments receive legal challenges regarding their authority on some of these issues, as well.

Blackburn’s bill does provide internet service providers some limits. The bill prohibits internet service providers from blocking or degrading internet traffic—often known as throttling—as long as the content is legal. The FCC would hold some enforcement powers on those matters.

However, the bill allows for “reasonable network management,” which many internet advocates believe would open the door to paid prioritization of services by internet service providers. While many would say this allows for effective management of a network by allowing, say, Netflix, to have a 'fast lane' in the evening when people are home streaming more content, critics believe it will entrench established and allied internet content providers at the expense of smaller upstarts.

“By not banning paid prioritization, Representative Blackburn allows broadband providers to have the power to prefer some content over others - allowing for a pay-to-play internet that entrenches dominant web services and ISP-affiliated content at the expense of new entrepreneurs, ideas, and innovation,” Lewis said.

The bill would also enshrine in law that broadband internet service are eligible for universal service funds, which are used to subsidize telecommunications services to low-income households, schools, medical facilities and libraries (particularly in high-cost and rural areas). However, as the universal service fund already supports broadband services, this appears to be a cosmetic change to reflect the current reality.

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Mitch Herckis is Senior Director of Programs for Government Executive’s Route Fifty and is based in Washington, D.C.

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