Mass. AG says state net neutrality legislation may face federal challenge
Paige Smith Special to the Journal
Feb 6, 2018, 4:59pm EST
Creation of comprehensive state net neutrality legislation hinges upon the murky question of federal preemption, Attorney General Maura Healey declared at the first hearing of the Special Senate Committee on Net Neutrality and Consumer Protection.
Net neutrality is the concept that internet service providers should ensure equal access to all content and applications regardless of the source, and without favoring or blocking particular products or websites.
The Federal Communications Commission voted to rescind the Obama administration regulation in December. Healey’s office collaborated with New York Attorney General Eric Schneiderman in suing the Federal Communications Commission over its decision.
“We are challenging the FCC’s flawed rationale for issuing this order and we are challenging the FCC’s even more troubling attempt to preempt all state and local laws reinstating net neutrality,” Healey said in her Tuesday morning testimony. “I know you share these concerns, which is why we are also challenging the FCC’s claims it can wholly preempt state law.”
The committee was formed following the FCC’s formal release of the order repealing the neutrality protections. Senate members unanimously approved the creation of the committee in response, of which Senator Cynthia Creem, D-Newton, is now the chairwoman.
Federal preemption, or the concept of federal law taking priority over state law, was a common thread throughout the the hearing. Though opinions diverged sharply, a substantive answer to forming state law under the threat of the federally mandated order was not reached.
“They can’t simply wipe away important state laws that are in place to protect our consumers and our businesses,” Healey testified. “Unfortunately, that is the position that the FCC has taken. They, it seems, don’t want the state to be able to play at all in this area.”
Though not in attendance, U.S. Sen. Edward Markey offered pre-recorded comments supporting Healey.
“Ajit Pai took a weed-whacker to net neutrality,” Markey said, referring to the FCC chairman. “Net neutrality has been an essential element for the operation of the internet since its inception.”
Gerard Keegan, assistant vice president of state legislative affairs for the wireless trade group CTIA, took an opposite approach, calling for no state action.
“The FCC reaffirmed its 2015 finding that broadband is an interstate service, in fact a global offering,” Keegan said. “State by state regulation, especially with mobile broadband, would be untenable.
“Just think about this in the mobile broadband context, which I represent. Would a law be applicable to where the user signed up for service, where the antenna that transmits the data is located, or where the user is currently located? That fight of patchwork of state regulation would just be unbearable and confusing for consumers.”
Keegan’s stance was echoed by Tim Wilkerson, vice president and policy counsel of the New England Cable & Telecommunications Association, which represents NESN, Turner Broadcasting and Bloomberg Television.
“We believe that it is clear that in order to establish a lasting consumer protection process, and procedures, and to spur innovation, and investment in this country, we need bipartisan federal action,” Wilkerson stated.
Northeastern University professor David Choffnes offered a different approach to the technological question of monitoring net neutrality through bandwidth “throttling,” or, as he explained, the unequal distribution of bandwidth to users.
“Telecoms need to be able to manage their network so everybody gets fair access to the internet,” Choffnes said. “There’s been many decades of research, even predating my entry into this field, as to how to manage network traffic under such scenarios, and so the recommendation that I would make is that in these situations, you can ensure that every subscriber has fair access to their fair share of the bandwidth that’s available in the network.”
Paige Smith is a Boston University journalism student writing as part of a collaboration between the Boston Business Journal and the BU News Service.