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The Internet Communications Government Network The Courts United States

Montana To FCC: You Can't Stop Us From Protecting Net Neutrality (arstechnica.com) 151

An anonymous reader quotes a report from Ars Technica: The Montana governor's office has a message for the Federal Communications Commission and Internet service providers: the state can't be stopped from protecting net neutrality, and ISPs that don't like it don't have to do business with state agencies. Governor Steve Bullock signed an executive order to protect net neutrality on Monday. But with questions raised about whether Bullock is exceeding his authority, the governor's legal office prepared a fact sheet that it's distributing to anyone curious about potential legal challenges to the executive order. ISPs are free to violate net neutrality if they only serve non-government customers -- they just can't do so and expect to receive state contracts. "Companies that don't like it don't have to do business with the State -- nothing stops ISPs from selling dumpy Internet plans in Montana if they insist," the fact sheet says.

The FCC's repeal of net neutrality rules attempts to preempt states and localities from issuing their own similar rules. But Bullock's executive order doesn't directly require ISPs to follow net neutrality rules. Instead, ISPs that accept contracts to provide Internet service to any state agency must agree to abide by net neutrality principles throughout the state. Bullock's fact sheet is titled, "Why Isn't Montana's Executive Order Preempted?" and it offers numerous answers to that question. "Through the order, the State of Montana acts as a consumer -- not a regulator," the fact sheet says. "Because there's no mandate, and no new regulations, there's certainly no federal preemption. Companies that don't like Montana's proposed contract terms don't have to do business with the State."

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Montana To FCC: You Can't Stop Us From Protecting Net Neutrality

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  • I love the idea (Score:2, Interesting)

    by Anonymous Coward

    By removing the mandate as a government rule and replacing it with contractual obligations they will bypass anything the FCC can do.

    The State system is a big enough customer to have the clout to make it happem

    • How many 'state' contracts with ISIs are funded with federal eRate funds, this exempting them from state requirements?

    • State contracts may be big but big enough? Montana? Maybe Montana's network contract are already too small for national providers. This contract restriction further drives down incentive. Overtime, Montana will be stuck with a single regional provider. No contract competition. And costs for the state go up. Good luck with that.
  • I can imagine big ISPs simply pulling the plug on the state government, and leaving the contract to a local ISP.
    • by Gravis Zero ( 934156 ) on Friday January 26, 2018 @07:23PM (#56012295)

      I can imagine big ISPs simply pulling the plug on the state government, and leaving the contract to a local ISP.

      Sounds like a great way to piss off the legislature and begin the proliferation of municipal ISPs.

      • by alvinrod ( 889928 ) on Friday January 26, 2018 @07:54PM (#56012431)
        Or just the state government passing rules that make it illegal for city governments to grant monopoly rights to an ISP. That's essentially the source of the problem. You can't expect a market and therefor choices to exist when it's been explicitly prohibited by law, and no one is really interested in starting their own black market internet over the whole deal.
        • by pots ( 5047349 )
          We've been down that road before, redundant infrastructure is bad for other reasons and doesn't generate as much competition as you might hope for. Given the extremely high barrier to entry.

          One of the advantages of classifying ISPs as Title II common carriers was that it allowed for the implementation of line sharing rules, which were baked into the Telecommunications Act. These rules were implemented briefly in 1999, and worked well, but they were only implemented for DSL and were revoked in 2005 when a
        • That's essentially the source of the problem. You can't expect a market and therefor choices to exist when it's been explicitly prohibited by law, and no one is really interested in starting their own black market internet over the whole deal.

          Distinction without a difference. Limited monopolies are a deal to get ISP's to accept government regulation. End said regulation and you'll still end up with a single (or dual) provider anyway due to market consolidation. And then they'll really gouge you. The onl

      • Montana. Not enough market to matter to large ISP's. The loss would be a rounding error. There are only about a million people in the whole state....
    • First, the state would probably like this, and would probably only agree to if the 'local' isp was in position to compete with the big isp.

      The state would probably offer direct incentives to the local isp to expand to consumers as well as state actors.

      If the big isp attempted to prevent this, the state would probably sue for breaking monopoly laws.

    • by lucm ( 889690 )

      There's 1 million people in Montana, and a total of 120 ISP. I don't think this is a death blow for the FCC.

      • There's 1 million people in Montana, and a total of 120 ISP. I don't think this is a death blow for the FCC.

        The tiny tip of a very large iceberg.

    • by murdocj ( 543661 )

      The LAST thing the big ISPs want is to encourage competition. They've essentially got monopolies. You think they want to encourage states to look for alternatives?

  • Rough road ahead. (Score:4, Interesting)

    by Gravis Zero ( 934156 ) on Friday January 26, 2018 @07:18PM (#56012257)

    I'm not sure if the people involved in repealing NN thought this was going to go away or not but it seem very clear that those against this are going to fight this to the bitter end. I don't expect anyone involved to walk away from this unmarred.

    • by Anonymous Coward

      Oh, they were prepared for this. The new FCC rules explicitly forbid states from defining their own net neutrality laws.

      As long as an ISP crosses state lines to provide Internet access (and, internet, so they do), the states can't regulate them because it's explicitly in the domain of the federal government.

      They were ready and already cut these off a the knees. Montana is free to regulate ISPs that only provide connections to services within the state of Montana, but if they provide access to anything outsi

      • by Anonymous Coward

        In a low-population, large-area state like Montana, state government is one of the largest Internet customers around. This isn't regulation; this is the 800-pound gorilla declaring its preferences.

      • by ClickOnThis ( 137803 ) on Friday January 26, 2018 @07:31PM (#56012343) Journal

        Montana did not pass a law or regulation. They stipulated a contractual condition for receiving state business.

        If you and I negotiated a contract for a service that placed conditions on how I provided my service to others, that wouldn't be a law or regulation either.

        Now, whether these contractual conditions are enforceable ... well, go watch the courts, and don't forget the popcorn.

        • The rub is going to be internet services funded by federal eRate subsidies - will schools that pay for their internet services be limited to only those providers that meet state purchasing requirements? Not sure, since the state isn't finding the purchase, it likely has no say - since this is only a contractual requirement.

      • by murdocj ( 543661 ) on Friday January 26, 2018 @10:10PM (#56013027)

        State contracts are the Montana's domain... not the FCC's domain.

      • by Agripa ( 139780 )

        Oh, they were prepared for this. The new FCC rules explicitly forbid states from defining their own net neutrality laws.

        As long as an ISP crosses state lines to provide Internet access (and, internet, so they do), the states can't regulate them because it's explicitly in the domain of the federal government.

        They were ready and already cut these off a the knees.

        What the FCC (and Congress) cannot do is order the states who they must do business with just like the federal government cannot order state law enforcement to enforce federal laws.

        Montana is free to regulate ISPs that only provide connections to services within the state of Montana, but if they provide access to anything outside the state - that's the FCC's domain.

        The states cannot even do that because the courts have ruled that anything *affecting* interstate commerce can be regulated under the interstate commerce clause as well. Even if the activity is purely intrastate, it counts. If the activity uses anything which passed in or affects interstate commerce, then it counts.

  • At the very least, forcing its opponents to fight the Net Neutrality battle at the State level multiplies the resources needed and aggravates those who benefit from its repeal.
    • by Agripa ( 139780 )

      At the very least, forcing its opponents to fight the Net Neutrality battle at the State level multiplies the resources needed and aggravates those who benefit from its repeal.

      In this case it also drags the 9th and 10th Amendments into a court fight where the federal government risks a decision expanding state's rights.

  • One of the points made is that the "marketplace" would decide things because those that didn't like it would just use a provider that kept things on an even keel.

    However, if Montana sticks to its guns, and none of the ISPs are willing to provide service under those terms, then it would show there is not valid competition in the marketplace (at least in Montana), such that the consumer (in this case the state) can find and use a provider that does business the way the consumer wants.

    It's the ultimate voting

    • I'm just afraid the answer is not going to be a good one.

      Why? The state can just build and manage their own cabling/wireless using local labor and be the ISP.

  • uhhh what if all ISPs simply stop taking contracts from government, and just.. allow it to stop having internet access? They'd be free to sell dumpy plans to everyone else in the state.. I guess it depends on how much $$$ montana pays for service?
    • It's more likely that some of the smaller ISP's already have no problem with net neutrality and would be happy to get state contracts. The Comcasts and Verizons are likely the ones that would stop taking contracts.
      • by Entrope ( 68843 )

        Verizon Government Services, Inc., a wholly owned subsidiary of Verizon, pledges that it will live up to Net Neutrality With Unicorn Chasers, and also that it won't bid for any business except for state and local governments that have contractual clauses requiring Net Neutrality With Unicorn Chasers.

    • Unlikely to happen.

      State contracts are incredibly lucrative, and the ISP's love money.

      They would be leaving money on the table if they just pulled out, and it would probably cost the ISP's more money if they just pulled out entirely. They would rather make money and follow the contract rules, than to pull out and make nothing.

  • by RhettLivingston ( 544140 ) on Friday January 26, 2018 @08:07PM (#56012491) Journal

    This is nothing more than consumers exercising their rights to walk away from bad products. If we all had the courage to do this, we'd have no need for government action to stop it.

    Instead of the short-term boycotts used in the past to fight bad actors, what we need this time is something like an organized "national day of service termination". The importance of having it be a "day" instead of just a general campaign to quit bad actors and move to good ones is to highlight the reasons for the drops and publicize it so that they can't just launch discount campaigns to pull in new suckers.

    There has been much organization and lobbying to fight net neutrality. Consumers, not just government consumers, need to start penalizing those seeking to take advantage of them with sharp organization that targets what counts, bottom lines.

  • This kind of action will only become more common as people realize more and more that some federal agencies only act in the interest of the administration du jour.
  • It's all well and good that the state is doing nothing more than setting requirements for vendors it deals with, but what if none decide to play the state's game? What is the fallback position, is the state going to establish it's own ISP just for government use? Are they going to try and use these new requirements to back out of existing multi-year contracts with ISPs?

    There's a very real chance (IMHO) that Montana doesn't wield the clout with ISIs it thinks it does.

    It will be interesting how this will play

  • Too funny. Republicans are staunch defenders of "state's rights" right up until they interfere with any corporate interests they're beholden to that might have their profits threatened.

    The thing is, the Feds took away federal-level regulation and oversight, in effect giving it back to the states. There is nothing that says states can't make certain rules about how they do business, and with whom. They do it all the time and it's entirely reasonable for them to do so (e.g. to make sure they're meeting certai

    • by Agripa ( 139780 )

      Too funny. Republicans are staunch defenders of "state's rights" right up until they interfere with any corporate interests they're beholden to that might have their profits threatened.

      Both parties are the same way. States rights are a great idea when they interfere with the other party.

      • Both parties are the same way.

        That statement is simply not true.

        Both parties suck at many things, but the democrats have always treated state's rights more seriously than republicans, who only pay attention to it when it hampers their business interests.

        • by Agripa ( 139780 )

          Both parties are the same way.

          That statement is simply not true.

          Both parties suck at many things, but the democrats have always treated state's rights more seriously than republicans, who only pay attention to it when it hampers their business interests.

          They sure are and not just on federalism. State's rights are normally associated with the right but the left pushes them just as much when they serve their purpose. They have the same policies on executive power; it is great when their own party has it. Also known as the "it's not evil when we do it" rationalization.

          https://www.washingtonpost.com... [washingtonpost.com]
          http://reason.com/archives/201... [reason.com]

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