The state of New York became the second state to put itself on a collision course with federal officials as its governor, Andrew M. Cuomo, signed an executive order Wednesday designed to flout the Federal Communications Commission's recent decision to repeal its net neutrality rules.
The order escalates a deeply polarized battle over the future of the Web and highlights the role states play as they seek to respond to major deregulatory decisions coming out of Washington.
Cuomo's order comes two days after Montana's governor, Steve Bullock, signed his own executive order in a bid to circumvent the FCC.
Neither measure directly reinstates the FCC's net neutrality rules, which were passed in 2015 and banned Internet providers such as AT&T and Verizon from blocking or slowing down websites and apps.
Instead, the orders require state officials to purchase Internet service only from broadband companies that abide by the principles of net neutrality. Net neutrality is the concept that all websites, small and large, should be treated equally by Internet providers and should not be arbitrarily sped up or slowed down — particularly in exchange for money.
Although New York was not the first to adopt such procurement rules, Cuomo's decision is significant because the state is among the country's most populous. As a huge consumer of Internet service, the state government could compel broadband providers who do business with New York to abide by net neutrality, even if federal regulations do not require it. That could indirectly provide net neutrality protections to average New Yorkers, according to Cuomo.
“The principles of net neutrality are inherently tied to the provision of high-quality, high speed broadband internet service for the state,” the order reads. “Many New York State government services are available only via the internet, and throttling or paid prioritization would limit the ability of many of the most vulnerable New Yorkers to access the internet.”
The executive orders are the latest development in a wave of state-level activity seeking to undercut the FCC's net neutrality policy. Earlier this month, more than 20 states and the District of Columbia sued the FCC over its decision. State lawmakers in California, Washington and New York have also discussed legislation that seeks to weaken the impact of the FCC decision.
Many of those efforts are overshadowed by the threat of litigation. The FCC's new, more limited rules on net neutrality explicitly ban states from trying to mimic the Obama-era rules. The agency has said it is willing to take states to court if they attempt to perform an end-run around the FCC policy.
By congressional mandate, the FCC is empowered to act where it has identified barriers to broadband deployment. In cases where states try to wield their traditional regulatory powers over Internet providers, the FCC could try to argue in court that states are putting up barriers that must be struck down. (The FCC declined to comment.)
That is not stopping some states from trying, in some cases by resorting to legacy regulatory tools such as construction permits.
“The state has broad power over cable franchises,” Scott Wiener, the state senator from California who introduced his own net neutrality bill this month, said in an interview. “Broad power over public right of way. Broad power over regulating broadband consumer protections.”
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.
Whereas the FCC would have a strong case against a state that tried to withhold construction permits to Internet providers that did not abide by net neutrality, it is much less clear how a court would interpret the procurement orders, Berin Szoka, president of the libertarian-leaning think tank TechFreedom, said.
“I really don't know how the state spending case would turn out,” Szoka said. “We've been looking into it. There isn't much case law to look to as precedent. It will be a fascinating case.”
Should more states adopt their own net neutrality rules, it could result in a patchwork of differing regulations Internet providers say would be a nightmare.
Providers have said they are supportive of net neutrality in principle, even if they strongly opposed the 2015 rules. In a full-page ad appearing in The Washington Post and other major news outlets Wednesday, AT&T said it does not block or slow down websites and called for Congress to draft a national law on net neutrality that would resolve the patchwork problem and settle the net neutrality debate once and for all.
Szoka added supporters of the net neutrality rules may want to think twice before attempting to establish different rules for Internet access in different parts of the country.
“Progressives should think long and hard before opening that door,” he said. “WWAD: What Would Alabama Do?”