Massachusetts Net Neutrality Proponents Encounter “Designated Buzzkill”

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By Katie Lannan

BOSTON — State senators looking to craft a response to the federal rollback of net neutrality protections heard Tuesday from a law professor who introduced himself as the “designated buzzkill” and cautioned that state-level action might not be possible or prudent.

The Federal Communications Commission in December adopted an order repealing past rules that deemed internet service a public utility and required internet providers to treat all traffic equally. Daniel Lyons, a Boston College Law School professor, told lawmakers the order also “expressly preempts any state or local measures” attempting to reinstate those rules.

Additionally, Lyons said, states face limits on actions that would interfere with interstate commerce, and state procurement laws conflicting with federal policy have been struck down in the past.

“It is unlikely that Massachusetts can act on net neutrality in light of the Federal Communications recent order, and secondly, I think there’s good reasons why it might not want to do so, even if it could,” Lyons said at a hearing of a special Senate committee on net neutrality.

Chaired by Newton Democrat Sen. Cynthia Creem, the committee was formed Jan. 18 to respond to the FCC’s reversal of the Obama-era net neutrality rules.

In response to Lyons’ testimony, Sen. Eric Lesser said states have a long tradition of passing laws governing “murky areas” like energy, transportation and insurance that are also subject to federal regulation.

Attorney General Maura Healey and 21 other attorneys general filed a lawsuit last month against the rollback, arguing in part that the FCC’s new rule “unlawfully includes sweeping preemption of state and local laws.”

Healey said she could not predict how long that litigation will take and told the committee they should not wait for the outcome before pursuing legislation.

Lesser said the question of preemption was “at the heart of our role of what kind of a law we put together.”

Asked by Lesser what new state regulation might look like, Healey said all options “should be explored” and the procurement process could be “an interesting additional means” to ensure open and equal internet access in Massachusetts.

The net neutrality rules were intended to prevent internet service providers from actions like blocking or slowing down specific websites or charging sites for quicker loading times.

Minority Leader Bruce Tarr, a Gloucester Republican and the committee’s vice chair, suggested the committee could build on the state’s existing consumer protection laws and asked Healey to stay in touch with the panel on that topic.

“It does not seem to me inconceivable that if someone tried to throttle or block, it may be a violation of the statute as it is presently construed or constructed,” Tarr said.

Noting that he pays between $50 to $60 per month for his Verizon internet access, Sen. Michael Barrett said he wanted the committee to figure out what would happen to the market without net neutrality if the legal challenges fail. He asked Healey if there is a way of “extracting any good” out of the rollback, such as lower prices for a “basic” package that could make technology more accessible to low income consumers.

“What really is the marketing thinking that these companies are engaged in?” said Barrett, a Lexington Democrat. “It can’t be just screw us transparently with no prelude, just get more bucks and do it as soon as possible. That would be dumb. That would really precipitate a consumer revolt, so what is the subtle approach that we might see?”

Healey said the state needs to “hold the line,” saying her office already receives many calls from consumers “fed up” with their cable and internet bills.

“I don’t think that here, drawing the distinction between rich and poor is the way to go,” she said. “I think that this is basically a service that’s got to be open and accessible to everybody, and that’s for the sake of our marketplace, I think, for the sake of fairness to everybody out there.”

Trade groups CTIA and New England Cable & Telecommunications Association and the Consumer Technology Association said they would prefer to see legislation at the federal level rather than by individual states.

Gerry Keegan of CTIA, which represents the wireless communications industry, said a state law is uncessary because Massachusetts already has strong consumer protections in place. He said the industry wants to see the federal government make a permanent decision that won’t change with each new administration.

“We need one final federal legislative solution, and that’s what we are advocating for,” he said.

Tim Wilkerson, vice president and general counsel of NECTA, said in a statement that his group supports and adheres to “the principles of Net Neutrality” and believes “the best way to achieve lasting consumer protections while spurring innovation and investment is through bipartisan federal legislation that establishes a national standard.”

Some states have sought to address net neutrality via executive order. Montana Gov. Steve Bullock, a Democrat, signed an executive order in January that his administration said “makes a preference for a free and open internet clear” and prohibits vendors who provide internet service to Montana from blocking lawful content, engaging in paid prioritization, or impairing internet traffic.

Gov. Charlie Baker said last month he hoped to talk to Bullock about the issue.

Creem asked Dennis McDermitt, chief technology officer at the Executive Office of Technology Services and Security, if Baker was considering his own executive order.

“We’re the computer geeks of government, and so I expect they would seek our input, but I’m in no way able to speak for them on policy issues,” he said.

McDermitt told the panel it’s early to speculate on what the FCC’s move will mean and the new secretariat is watching for impacts, as a consumer of internet services.

“The truth is, what happens now is all potential,” he said. “This could relate to pricing, competition, security practices, what have you, and yet there’s no guarantee that any of those things will change.”