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Montana makes a fast play for net neutrality

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While the California legislature is just beginning work on a network neutrality revival, Montana has already put its own version into effect. Montana governor Steve Bullock issued an executive order on Monday that bakes net neutrality rules into state contracting requirements.

If any company wants to sell telecommunications to the State of Montana it has to publicly disclose its network traffic management policies and other terms of service. Providers cannot:

  1. Block lawful content, applications, services, or nonharmful devices, subject to reasonable network management that is disclosed to the consumer;
  2. Throttle, impair or degrade lawful internet traffic on the basis ofinternet content, application, or service, or use of a nonharmful device, subject to reasonable network management that is disclosed to the consumer;
  3. Engage in paid prioritization; or
  4. Unreasonably interfere with or unreasonably disadvantage: a. End users’ ability to select, access, and use broadband internet access service or the lawful internet content, applications, services, or devices of their choice; or b. Edge providers’ ability to make lawful content, applications, services, or devices available to end users.

State purchasing requirements very similar to Bullock’s are included in the latest version of California senate bill 460, which is scheduled to be considered by the senate judiciary committee later today. There’s a similar, albeit sketchy, sentiment expressed in the current draft of SB 822, which is expected to be substantially amended before it’s teed up in the senate next month.

Tying net neutrality obligations to state purchasing requirements is a tactic that has a good chance of surviving the inevitable federal court challenges. The Federal Communications Commission tried to preempt state-level net neutrality efforts to the extent it could, but Bullock’s order does an end run around that restriction. It sets out rules that state purchasing agents have to follow, rather than directly telling telecoms companies how to run their businesses. The FCC doesn’t have anything to say about who a state buys Internet service from or what features and specifications that service must meet.

Whether that’s enough leverage to force ISPs to abide by rules they wouldn’t otherwise follow on their own remains to be seen.

State of Montana, executive order providing for Internet neutrality principles in state procurement, 22 January 2018