Illinois State Government Joins Ranks of Net Neutrality Defenders Across Country

Posted on February 28, 2018

With the publication in the federal register of the FCC’s plan to scrap federal net neutrality protections, the struggle for net neutrality enters its most contentious phase:  state legislatures and attorneys general  have mounted a coordinated defense, as well as individual efforts, against the looming FCC policy change.

Illinois has positioned itself as a champion in this cause. 

 Attorney General Lisa Madigan has joined 22 other attorneys general in a multi-state suit challenging the validity of the FCC order and seeking its review. The lawsuit was formally filed in US Court of Appeals DC Circuit on Thursday, February 22,  the day of publication of the FCC order in the Federal Register. Plaintiffs, led by New York Attorney General Eric Schneiderman, charge that the repeal of the FCC regulations established under the Obama administration was “arbitrary” and “capricious” and as such violates the Administrative Procedures Act. Signed into law in 1946, the APA was intended to lend integrity to the rulemaking processes of federal agencies and, crucially, ensure that rules were not changed for reasons that are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” Many net neutrality advocates contend that the complete reversal in FCC policy after only two years, in spite of a lack of substantive change in the nature of the services to be regulated, violates precisely this provision of the APA, and the consistency of the lawsuit’s complaint with this language suggests that the plaintiffs have adopted a similar view. 

In addition, the Illinois state legislature is considering avenues for safeguarding net neutrality for state internet users. Like a number of executive orders and draft legislation in other states, HB 4819 stipulates that any internet service provider which does business with the state of Illinois must offer its products and services in accordance with net neutrality principles for all of its customers, including home broadband subscribers. The bill, known as the Broadband Procurement and Disclosure Act, would also require all ISPs to notify the public of their fee structure and policies regarding traffic blocking, throttling, or paid prioritization.

CCDBR adds its support to the coalition backing HB 4819.

The push to apply economic pressure to ISPs is a tactic which several other state governments have taken up, some as early as January of this year. Last month, the governors of Montana and New York signed executive orders prohibiting any state agencies from contracting ISPs which don’t observe the principles or net neutrality for all customers in the state. Since then, the governors of New Jersey, Vermont, and Hawaii have followed their lead and signed matching executive orders. A major reason for this approach is that, as part of its rule change dismantling net neutrality, the FCC stipulated that state and local governments could not pass or implement regulations contradicting its net neutrality policy.

The state legislatures of New York, Rhode Island, Maryland, Tennessee, Wisconsin, Iowa, and South Dakota are considering measures that would enforce similar state broadband purchasing restrictions. Alternatively, California and Washington lawmakers are maneuvering to defy the FCC preemption ban outright by pursuing statutory net neutrality consumer protections. While these latter, more aggressive legislative remedies have yet to be enacted, legal experts view them as likely to spark a legal battle with the FCC, with much disagreement on the prospects for successfully resisting FCC pushback. 

These efforts merely constitute the opening move in what is certain to be a protracted campaign for a free and open internet, but Illinois and allied progressive states around the country are poised to lead the charge on many fronts.