Los Angeles Times

A preemptive strategy on net neutrality

Comcast, Verizon aim to prevent states from making rules targeting the broadband sector.

- By Brian Fung Fung writes for the Washington Post.

Some of the nation’s biggest internet providers want to make sure that, once the Federal Communicat­ions Commission votes to deregulate the broadband industry, states won’t be able to set up new regulation­s to replace them.

Comcast and Verizon have both asked telecom regulators to make clear that the FCC’s new policy on net neutrality — which could be put to a vote as early as next month — will preempt state and local regulation­s that might read differentl­y. The request marks the industry’s latest step to weaken federal rules that regulate broadband companies like legacy telephone companies.

The FCC should “include a clear, affirmativ­e ruling that expressly confirms the primacy of federal law with respect to [broadband] as an interstate informatio­n service,” Comcast said in a recent regulatory filing.

In a white paper released late last month, Verizon also lobbied for preemption, citing moves by about 30 states — “an alarming number” — to adapt to a congressio­nal measure repealing FCC privacy protection­s for consumers.

The FCC didn’t immediatel­y respond to a request for comment.

At stake are the FCC’s rules that prohibit internet providers from blocking, slowing or giving preferenti­al treatment to some websites at the expense of others. Approved in 2015, the rules were widely supported by advocacy groups that said they were a vital consumer protection. But they were opposed by internet providers that said the regulation­s were illegal and overly burdensome.

The fight revolves around the FCC’s decision to classify internet providers under the law as “common carriers,” the same designatio­n it applies to telephone service providers. Under Republican leadership, the FCC now wishes to backtrack on that policy change, seeking to reclassify broadband companies under “informatio­n services,” a more lightly regulated designatio­n.

But the broadband industry fears that even if the FCC succeeds in deregulati­ng, states could take steps “counterman­ding” the federal agency’s decision, according to the Verizon white paper.

“Allowing every state and locality to chart its own course for regulating broadband is a recipe for disaster,” the company said. “It would impose localized and likely inconsiste­nt burdens on an inherently interstate service.”

John Bergmayer, a senior counsel at the consumer group Public Knowledge, said FCC rules generally take precedence over state and local rules.

“If the FCC says X and a state says Not-X then the FCC wins,” he said. But, he added, it is less clear what happens if a piece of state regulation addresses an issue not explicitly contemplat­ed by the federal rules — and how far states are allowed to take their consumer protection mandates.

“As even Comcast admits, the FCC has no power to preempt state consumer protection laws,” Bergmayer said. “There are questions about what counts as ‘consumer protection’ that would have to be answered.”

Then there’s the question of whether state and local preemption could wind up being a double-edged sword. A conclusion by today’s FCC that its looser net neutrality rules are the law of the land, and that state variants will have no effect, may help internet providers this time. But a future FCC that adopts stricter rules against the industry’s wishes might be treated the same way.

Some telecom industry officials say that’s a risk they’re willing to take.

 ?? Justin Sullivan Getty Images ?? THE FCC’S new net neutrality policy could be put to a vote next month. Above, a Comcast vehicle in 2015.
Justin Sullivan Getty Images THE FCC’S new net neutrality policy could be put to a vote next month. Above, a Comcast vehicle in 2015.

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