Despite a federal appeals court this week giving states more power to regulate internet providers, it could be years before Vermont can begin enforcing a net neutrality law.
The Vermont Attorney General’s Office says that the state won’t be able to activate the 2018 law — which requires state contractors to follow Obama-era net neutrality standards — until the appeals process in the federal case is fully resolved, which could take months, or years.
But state officials and lawmakers still said this week’s ruling was a win for Vermont and states that want to protect internet regulations that President Donald Trump is attempting to scrap.
In 2017, the Federal Communications Commission voted to roll back the regulations designed to maintain equality in internet service.
Under the federal rule change, internet users could be charged different amounts for access in “slow lanes” and “fast lanes.” A telecom company could, for instance, throttle free access to one streaming service while prioritizing paid services.
Vermont businesses have said the change would create an uneven playing field and tip the scales to online companies and services offered by major corporations.
In 2018, Vermont lawmakers and Gov. Phil Scott acted separately to put net neutrality rules in place.
Scott handed down an executive order, and the Legislature passed a bill that prevented the state from contracting with internet service providers that don’t adhere to basic net neutrality principles.
Critics of the federal repeal, including Vermont lawmakers and Scott, said that removing the regulations would open the possibility of internet providers offering tiered services for different price points.
When the FCC rolled back net neutrality rules it told states that they couldn’t pass their own rules on the matter because they were preempted by the federal decision.
In October of 2018, Vermont officials agreed not to enforce its new neutrality regulations after the state was sued by a national cable and telecommunications organizations over the law and executive order.
The groups argued in the lawsuit that Vermont was preempted by the FCC’s decision.
But in a ruling this week that mostly held up the FCC’s rollback of net neutrality regulations, a Washington, D.C., appeals court decided that the federal government can’t stop states from enacting their own net neutrality policies.
However, there won’t be any immediate changes in Vermont. State officials said that as net neutrality litigation — including the lawsuit filed against the state last year— continues, they are holding tight.
“While the ruling on preemption gives us some hope, there is still a long way to go in the legal process and therefore there is no immediate impact from the decisions,” Rebecca Kelley, a spokesperson for the governor, said in an email.
Deputy Attorney General Joshua Diamond said that as part of Vermont’s agreement with telecoms organizations that sued the state, it wouldn’t enforce the law or executive order until the net neutrality cases were settled in the Washington, D.C., circuit court.
California, in a separate court case this year, also agreed to halt the enforcement of its state-level net neutrality laws pending the resolution of the case against the FCC.
Lawmakers said the court ruling was a win for Vermont and other states that want to impose net neutrality rules.
“The ruling this week is definitely a victory for Vermont in the sense that it confirms states can take action to protect a free and fair internet for their citizens in the face of terrible practices by massive telecommunications companies,” said Senate President Pro Tem Tim Ashe, D/P-Chittenden.
Ashe said that he doesn’t see the need to propose new net neutrality legislation in 2020 “since what we have on the books is straightforward, legal, and fair.”
“We just need the law to be enforced,” he said.
However, some House lawmakers are hoping to take state’s net neutrality regulations even further.
Rep. Tim Briglin, D-Thetford, chair of the House Energy and Technology Committee, said he is interested in putting additional net neutrality regulations on the table, if legislative counsel and the Attorney General’s Office say that it’s in the Legislature’s purview to do so.
But he hasn’t received official analysis from either office since this week’s ruling.
“We’re looking to go as far as we could in pushing back on the FCCs ruling and now with this new court ruling we’re going to want to go back and revisit how far we can push back at what the FCC has tried to do at the federal level to make sure consumers are best protected in Vermont,” Briglin said Friday.
Rep. Laura Sibilia, I-Dover, who pushed for Vermont’s 2018 net neutrality legislation, also said that pending advice from legislative counsel and the attorney general, she is interested in proposing stricter net neutrality rules.
In 2018, Sibilia, who now chairs the Legislature’s Joint Information Technology Oversight Committee, pitched another net neutrality bill that contained even tougher regulations for internet companies.
That bill, H.680, would require internet providers who want to do business in Vermont to apply to the Public Utility Commission to obtain a certification that they abide by net neutrality rules.
She said the court of appeals’ ruling looks “very promising” for states. “We’ve got to wait and see what happens with the appeals,” she added, “but I do not think it was a bad day for Vermont.”
