The State of Washington takes on Washington, DC with its own net neutrality law

8 March 2018 by Steve Blum
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The State of Washington is the first to enact a network neutrality law. Washington governor Jay Inslee, a democrat, signed the bill on Monday. Both republicans and democrats voted in favor, with the bill winning lopsided majorities in the Washington house and senate.

The core language tracks with the former FCC’s three bright line rules, as well as similar legislation introduced in California. Internet service providers would not be allowed to…

(a) Block lawful content, applications, services, or nonharmful devices, subject to reasonable network management;
(b) Impair or degrade lawful internet traffic on the basis of internet content, application, or service, or use of a nonharmful device, subject to reasonable network management; or
(c) Engage in paid prioritization.

There is an exemption allowing ISPs “to address the needs of emergency communications or law enforcement, public safety, or national security authorities”, and to enforce copyright laws or block illegal activity. It also requires ISPs to disclose network management practices on “a publicly available, easily accessible web site”.

Assuming it’s not blocked by a federal judge – not a particularly good assumption – Washington’s law will take effect on 6 June 2018, but only if the FCC’s decision to roll back federal net neutrality rules is also in effect by then.

At that point, state and federal law will collide head on. The FCC’s decision nominally preempts any end runs by state legislatures. On the other hand, it gives the broadband cop job to the Federal Trade Commission and observes “that all states have laws proscribing deceptive trade practices”. Washington’s law takes advantage of that opening and defines blocking, throttling or paid prioritisation as “an unfair or deceptive act in trade or commerce and an unfair method of competition”.

It’s hard to imagine that’ll be enough to put states in the business of regulating broadband service, but who knows? The only sure bet is that the next chapter of this story will be written in court.