Internet Providers Say Net Neutrality Commitments Do Not Prevent Challenges to Vermont Law

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It was the decision of the FCC to roll back the net neutrality rules of the Obama Administration. The net neutrality rules included blocking, paid prioritization and throttling, even though many internet service providers stated that they are committed to avoid such practices without any oversight from the federal regulators. These commitments have set the stage for a fight in the Vermont court over whether these companies are injured by the attempt of the state to do what the FCC will not do.

The American Cable Association, NCTA, USTelecom, CTIA, and New England Cable & Telecommunications Association are suing over the net neutrality law of Vermont. They contend that the dormant Commerce Clause and the Supremacy Clause of the US constitution protect the broadband service providers from inconsistent regulations. In a summary judgment motion, the plaintiff also wanted a judge to declare the law of Vermont as preempted by the “Restoring Internet Freedom” order by the FCC.

Vermont officials who are fighting the lawsuit are now borrowing a favored legal tactic in America. They are questioning whether the internet service providers will be able to demonstrate harm or suffering as injury is needed to establish the standing to sue.

“Plaintiffs do not allege that any of their members have ever done anything in Vermont inconsistent with net neutrality or been prevented from doing anything inconsistent with net neutrality by State contracting requirements,” stated a December 24 motion to dismiss. “To the contrary, Plaintiffs allege that the FCC requires disclosure of ‘blocking, throttling, [and] paid prioritization’ and that their members have all ‘made public commitments to abide by open Internet principles’ that are fully enforceable under ‘unfair and deceptive trade practices laws’.”

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The trade groups then responded to the argument. As per the opposition brief, when the broadband providers made their commitments for net neutrality, they stopped short on pledging to honor the old “Internet Conduct Standard” of FCC. As per the trade group, the standard is “overbroad and ambiguous”. The standard prohibits internet service providers from “unreasonably interfering with or unreasonably disadvantaging” the access of the end user to the internet content providers or that of the content provider to end users. For instance, Comcast® will not be allowed to interfere with the ability of a user to stream shows on Netflix®.

“Plaintiffs’ members have not made commitments to abide by this ambiguous ‘conduct standard’, and it is impossible for ISPs to know what it proscribes,” states the brief of the opposition. The trade groups then offered an example of what they might prescribe. “”Consider zero-rating, for example – a practice that allows ISPs to exclude certain content from an end user’s monthly data usage allowance,” continues the memorandum. “When adopting the Internet Conduct Standard, the 2015 Order asserted that zero-rating plans may or may not run afoul of the standard. ISPs then faced an FCC investigation lasting more than a year as to whether certain zero-rating plans violated the standard, with the FCC ultimately unable to reach a definitive conclusion.”

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