After the Federal Communications Commission's Restoring Internet Freedom Order and transparency rule amendments became effective June 11, 2018, overturning earlier requirements on net neutrality requirements on internet service providers, state legislators responded by introducing net neutrality legislation at the state level.
Net neutrality is the concept that all data traffic on a network should be treated indiscriminately, and internet service providers (ISPs) would be restricted from blocking, slowing down or speeding up the delivery of online content at their discretion. The current debate surrounding net neutrality is principally about how ISPs should be regulated and what role government should play in overseeing their network management practices.
The rule change places primary jurisdiction over internet service providers’ network management practices under the Federal Trade Commission and preempts states from enacting similar ISP network restrictions as found in the 2015 Open Internet Order.
Attorneys general from more than 20 states, nonprofits and internet groups filed suit against the FCC's Restoring Internet Freedom Order, arguing that the FCC action was arbitrary and capricious in violation of the Administrative Procedure Act. In October 2019, the U.S. Court of Appeals for the District of Columbia issued its ruling, upholding the 2018 order, with two exceptions. First, the court concluded that the FCC had not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission “repealed or decided to refrain from imposing” in the order or that is “more stringent” than the order. The court vacated that portion of the order. Second, the court remanded the order to the FCC on three discrete issues: (1) The order failed to examine the implications of its decisions for public safety; (2) the order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address petitioners’ concerns about the effects of broadband reclassification on the Lifeline Program. A petition for rehearing en banc was denied Feb. 6, 2020.
Seven states—California, Colorado, Maine, New Jersey, Oregon, Vermont and Washington—and Puerto Rico enacted legislation or adopted resolutions in previous legislative sessions. In a deal with the U.S. Department of Justice, California agreed to not enforce its net neutrality law until the lawsuit challenging the Federal Communications Commission's repeal of the federal regulations is resolved. The U.S. Department of Justice formally dismissed the lawsuit in Feb. 2021.
Eleven states have introduced net neutrality legislation in the 2022 legislative session. New York enacted legislation that established the ConnectALL deployment program and provided that preference will be given to applicants who commit not to impose caps on data usage on the service provided to the end-user or to block, throttle, or prioritize internet content in the general course of business.
Separately, legislators have introduced measures that would restrict ISPs’ use of customer information and adopt privacy protections. For example, two states, Nevada and Minnesota prohibit disclosure of personally identifying information, but Minnesota also requires ISPs to get permission from subscribers before disclosing information about the subscribers' online surfing habits and internet sites visited.