[A] group of national cable and telecommunications organizations have sued Vermont over a new law and an executive order signed by Gov. Phil Scott requiring internet providers who do business with the state to abide by net neutrality principles.
Five organizations including the Internet and Television Association, the biggest national trade group representing cable providers, and the New England Cable and Telecommunications Association, which represents Comcast and Charter Communications in Vermont, filed suit over the measures in federal court on Thursday.
In their complaint filed in U.S. District Court in Burlington, the groups charge that the state’s attempts to safeguard net neutrality rules are unconstitutional and “expressly preempted by federal law.” They urge the court to prevent the executive order and law from being enforced.
Earlier on Thursday, Scott announced that the state was bracing for the lawsuit. He defended the actions Vermont had taken to preserve net neutrality standards in the wake of the federal rollback of Obama-era regulations designed to maintain equality in internet service.
“Our net neutrality legislation and my Executive Order demonstrate a clear commitment from Vermont’s elected officials, across branches and party lines, to preserving and promoting a free and open internet in Vermont,” Scott said in a statement.
“I am disappointed to hear national telecom and cable organizations plan to sue us for taking action to protect our citizens and our economy,” he said.
The trade associations argue that the Federal Communications Commission’s order rolling back net neutrality supersedes the state’s efforts to preserve them. It also states that broadband services are a form of interstate commerce and should be regulated only by federal law.
“As the FCC has repeatedly recognized, Internet traffic flows freely between states, making it difficult or impossible for a provider to distinguish traffic moving within Vermont from traffic that crosses state borders,” the lawsuit says.
Vermont Attorney General T.J. Donovan’s chief of staff, Charity Clark, said Thursday that her office would not be able to issue a response to the lawsuit until Friday.
In May, Scott signed into law a bill requiring internet service companies who contract with the state to adhere to some net neutrality standards. It entrusts the Attorney General’s Office with determining whether providers who operate in Vermont are following such principles.
Months before that, in February, Scott signed an executive order preventing providers who obtain state contracts from blocking content, engaging in paid prioritization of internet services or acting to “throttle, impair or degrade lawful Internet traffic on the basis of Internet content, application, or service.”
In their lawsuit, the organizations argue that this requirement violates Supreme Court precedent which “makes clear that a state cannot use its spending power as a means to regulate indirectly what it cannot regulate directly.”
The federal repeal of the net neutrality rules went into effect in June, six months after the Federal Communications Commission chairman voted 3-2 to overturn the 2015 regulations. FCC Chairman Ajit Pai visited Vermont last month as part of a New England tour aimed to reassure rural states of his commitment to connecting all Americans with high-speed internet.
Critics of the federal repeal say that removing the regulations opens the possibility of internet providers offering tiered services for different price points, or speeding up access to favored sites and slowing it down for others.
Without such rules in place, a telecom company could, for instance, throttle access to one television streaming service in order to give priority to a different service that pays a premium. Or internet users could be charged different amounts for access in “slow lanes” and “fast lanes.”
While many internet companies have vowed to adhere to neutrality standards despite the FCC’s rollback, the telecommunications industry has pushed back hard against Vermont and other states seeking to impose their own net neutrality requirements.
Before joining the lawsuit against Vermont, the New England Cable and Telecommunications Association (NECTA) lobbied against both Scott’s executive order and law, S.289, while they were under consideration earlier this year, arguing that the state shouldn’t be in charge of setting the rules for internet providers.
“We feel it’s important to take a stand for maintaining one unified national policy framework for the most important engine of innovation in our modern, digital economy and for making clear that states should not and cannot regulate what is a fundamentally interstate service,” NECTA president Paul Cianelli said in a statement Thursday.
The lawsuit filed Thursday isn’t the first legal challenge that has been brought against state net neutrality legislation.
Last month, the U.S. Department of Justice sued the state of California over its net neutrality legislation, which is the strictest in the country. That law prevents any internet providers operating in the state from blocking or stifling content, and bans paid prioritization of internet content.
U.S. Attorney General Jeff Sessions said California’s lawmakers had overstepped their bounds with the bill.
“Under the Constitution, states do not regulate interstate commerce — the federal government does,” Sessions said in a statement. “Once again the California Legislature has enacted an extreme and illegal state law attempting to frustrate federal policy.”
