On Monday, Montana made net neutrality the law of the land by executive order. Any internet provider holding a state contract had to promise not to throttle any website or create a “fast lane” for other sites, or they’d be out their contract. It wasn’t a perfect solution, but it ratcheted up the pressure on ISPs and the FCC to come to a reasonable solution. That pressure just grew much more intense now that New York has followed suit.
According to the Washington Post, an executive order signed by New York Governor Andrew Cuomo requires the state to only accept contracts from providers who offer net neutrality. It’s not a direct order reinstating net neutrality; it’s instead an order around state procurement rules, much like Montana’s. And, as the Post notes, that makes it much trickier for the FCC to try and invalidate:
It is the procurement concept at the heart of the executive orders that could prove the most challenging to the FCC, some analysts say. After all, the orders do not seek to impose direct regulations on the providers themselves, but on the customer — the state government.
The FCC’s further problem is they’re trying to make their lack of regulation the standard, whereas before, it’s been the precedent that if the federal government steps aside, the states fill the void with their own laws. Leaving aside any debate on net neutrality, it’s not clear how much jurisdiction the FCC has over the states on this issue in the first place, and it seems unlikely the FCC would have any vote at all in state procurement rules.
This only adds to the FCC’s problems with its attempt to abandon net neutrality. It’s already being sued by twenty states and the District of Columbia, the Senate is attempting to use a GOP weapon against regulation to force a vote on it, and currently, we’re witnessing a government agency get completely owned by the people who invented chicken fries. It was clear from the start, to everyone that wasn’t the FCC’s Republican commissioners, that any attempt to rescind these rules would quickly become a legal nightmare. But it says a lot that the FCC may not even be able to make an argument in court before net neutrality is de facto the law of the land.
(via Washington Post)