Washington won the race to become the first state to enact net neutrality laws Monday, as Governor Jay Inslee signed a recently-passed bipartisan bill into law. But being the first means Washington may also be the first to face the wrath of the Federal Communications Commission, and may be bracing for a brawl.
Ever since the FCC scrapped national net neutrality protections last year, dozens of states have started considering legislation to establish their own local protections, and Washington is the first. Its new laws, which go into effect on June 6, enforce transparency from ISPs and prohibit blocking, throttling, or prioritizing content online.
But the FCC made it clear in its official deregulation that states could not supercede the agency’s decision by creating local laws. This means, according to the FCC, Washington had no authority to pass the law it just did—the state did it anyway, and the ball is now in the FCC’s court over whether or not to challenge the laws under federal review.
Private companies could also challenge the laws in court if they want to, and either route would set up a precedent for other states considering similar laws.
Other state governments, such as Colorado, are trying to find loopholes to enforce net neutrality without creating new state laws in order to survive the federal preemption. The state could, for example, require ISPs to follow net neutrality as a condition of contracts to use public right of ways for infrastructure or if the ISP has the state as a customer. This was the case for executive orders passed by the governors of New York and Montana, imposing net neutrality requirements on ISPs that had contracts with the state. The trouble is that rules like these wouldn’t cover all customers in the state and would still leave room for ISPs to avoid net neutrality.
Still other states have filed lawsuits, hoping to legally reverse the FCC’s decision in order to restore net neutrality nationwide, rather than creating a patchwork of protection state-by-state.
The only thing that’s certain in this fight at this point is that it’s far from over.