Massachusetts Net Neutrality Law Would Name and Shame Terrible ISPs

The state is just the latest to try and hold broadband monopolies accountable in the wake of federal apathy.
July 26, 2018, 2:51pm
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Massachusetts is proposing a new bill that would name and shame internet service providers that ignore net neutrality or violate consumer privacy.

In the wake of the FCC’s repeal of net neutrality, more than half the states in the union are considering their own, state-level net neutrality rules. Some states are tackling the problem with legislation (California, Oregon, Washington), while others (like Montana) are signing executive orders banning state agencies from doing business with ISPs that behave anti-competitively.

Most of these bills ban ISPs from engaging in most of the more common examples of anti-competitive behavior, including blocking or throttling competing websites or services. Others take aim at things like zero rating, or an ISP’s use of usage caps and overage fees to hamstring streaming alternatives and deter cord cutting.

Massachusetts’ S2160 is trying something slightly different.

Under the proposed law, the state would create an “internet service provider registry” that tracks whether ISPs adhere to privacy, net neutrality, and other consumer friendly policies. ISPs that respect consumer privacy and net neutrality would then be allowed to advertise a “Massachusetts Net Neutrality and Consumer Privacy Seal” of approval.

The goal is to force ISPs to be more transparent about their network management and handling of your private data. That’s of particular concern given the FCC replaced tough net neutrality and ISP transparency requirements with the policy equivalent of a pinky swear last December.

Sources familiar with the legislation’s trajectory but not authorized to speak publicly tell Motherboard that the state decided against hard limits on things like throttling or blocking because state leaders were worried that ISPs would successfully sue to overturn the law.

That’s because when the FCC repealed net neutrality, it included a provision attempting to “pre-empt” (read: ban) states from protecting consumers. As a result, large ISPs have threatened to sue any states that stand up for consumer welfare, and at least one ISP (Charter Spectrum) has tried to use the repeal to wiggle out of state lawsuits for terrible broadband.

Charter’s efforts on that front have failed, and the the FCC’s authority to tell states what to do has been highly contested.

Still, Massachusetts thought it might be a better idea to try and publicly shame ISPs into behaving. The problem is that thanks to limited competition, consumers often don’t have any other ISPs to switch to. As a result, whether an ISP receives the Massachusetts seal of approval may not matter if the end user has no alternative broadband options.

The bill does attempt to at least marginally address this lack of competition by clarifying an existing Massachusetts law stating that municipalities have the authority to build and operate their own broadband networks. As we’ve previously noted, twenty one states have now passed laws at ISP behest banning towns and cities from getting into the broadband business.

Massachusetts’ proposal is the latest example of states stepping up and attempting to protect consumers in the wake of federal apathy. That’s obviously not the outcome many ISPs envisioned after countless hours and millions of dollars spent lobbying lawmakers to repeal the federal rules.

Unsurprisingly, ISP lobbying groups like the New England Cable & Telecommunications Association were quick to try and claim the proposed law would somehow stifle innovation in the state.

“The measure that passed today will do little to protect consumers while hurting innovation and economic growth,” the group claimed in a statement. “The best solution is a bipartisan, federal net neutrality law that protects consumers and encourages investment here in Massachusetts and across New England.”

Worried that looming lawsuits will overturn the FCC’s repeal of net neutrality, ISPs have been trying to get Congress to sign off on bogus net neutrality bills in name only; ISP-approved legislation that pretends to protect net neutrality, but is generally designed to pre-empt tougher state rules from being passed—or the FCC’s discarded 2015 rules from being restored.

Massachusetts’ proposed net neutrality law passed the Senate last week, and now heads to the House. If it’s not passed by July 31, state officials inform Motherboard that they’ll be forced to revisit the issue from scratch next January. Massachusetts, meanwhile, is one of 23 states suing the FCC in a bid to restore the federal rules.