Murphy Makes Net Neutrality the Order of the Day

Carly Sitrin | February 6, 2018 | Politics
In his ninth executive order to date, governor ensures all internet traffic will be treated equally by ISPs and providers that want do business with the state

murphy net neutrality
In his ninth executive order to date, governor ensures all internet traffic will be treated equally by ISPs and providers that want do business with the state

Any ISP or telecommunications provider that wants to contract with the state will now have to adhere to the principles of net neutrality — the idea that all internet traffic should be treated equally. Gov. Phil Murphy mandated that on Monday with the signing of his ninth executive order since taking office. New Jersey will also join a multistate lawsuit led by New York Attorney General Eric Schneiderman against the Federal Communications Commission (FCC), which repealed federal net neutrality rules in December, he announced.

Net neutrality became a hugely controversial issue after the FCC, under the Trump administration, dismantled the rules by which consumers access the internet late last year. That allows ISPs to block content or websites and charge more for certain content. It was a bit overshadowed by the furor about the Affordable Care Act but still received vehement protests from consumers and providers of internet content.

Murphy’s executive order — similar to ones signed by the governors of New York and Montana — requires that all internet contracts awarded or renewed after July 1, 2018, between internet service providers (ISPs) and any state entities stick to the “net neutrality” principles. The Division of Purchase and Property (with input from the Department of Law and Public Safety and Division of Consumer Affairs) is charged with implementing the order by March 1, 2018.

“We may not agree, and I know we don’t, with everything we see online, but that does not give us a justifiable reason to block the free, uninterrupted, and indiscriminate flow of information, and it certainly doesn’t give certain companies or individuals a right to pay their way to the front of the line,” Murphy said at a press conference in Newark. “As a state, New Jersey cannot unilaterally regulate net neutrality back into law or cement it in state regulation, however, as a major purchaser of internet services, state government will follow (FCC Chairman Ajit Pai’s) wishes and exercise our power as a consumer to make our preferences known.”

The order extends protections not just to state officials, but to “any consumers in New Jersey (including but not limited to state entities),” meaning that ISPs with a state contract would not be allowed to throttle or slow internet access for any Garden State resident.

A free and open internet

Net Neutrality is a term first coined in 2003 by Tim Wu, a law professor at Columbia University who wrote a paper arguing for an “antidiscrimination principle” that would keep broadband operators from restricting how people use the internet. At its core, net neutrality means wireless providers and cable companies shouldn’t be allowed to block or slow down any user’s access to specific sites, content, or services on the internet. Adhering to net neutrality would mean that ISPs could not develop a “fast lane” allowing some content (like the Verizon homepage, for example) to load faster than any other website or service. For example, it would forbid Comcast, which owns NBC Universal, from throttling back NBC content in favor of its own. It’s also expected to increase costs to both consumers and businesses alike, if countries without net neutrality rules are a guide.

In December, the FCC voted to eliminate the net neutrality rules and reclassify broadband as an “information service” rather than a “telecommunication service.” The main difference: A “telecommunication service” is regulated as a public utility whereas an “information service” is less heavily regulated and bound loosely by promises it makes to consumers.

In 2015, under President Barack Obama, FCC chairman Tom Wheeler instituted strict net neutrality rules classifying internet broadband as a “telecommunications service” and setting a strong legal foundation for both wired and wireless providers. One of the requirements was that all broadband providers behave in “a just and reasonable” way, something opponents feared invited too much uncertainty into the process and could discourage innovation by network owners.

What the current FCC chairman Ajit Pai did in December, however, was rescind those Obama-era rules and allow ISPs to control the speed and cost for services on the web.

No local net neutrality

According to the FCC’s order, state and local governments are banned from enacting their own regulations on net neutrality. They cite concern that ISPs would have to adhere to “a patchwork of separate and potentially conflicting requirements across all of the different jurisdictions in which it operates.” They reason that the internet reaches across state borders and traffics between many jurisdictions creating possible confusion. However, states like New Jersey are arguing that state governments bear a certain amount of responsibility to provide free and open internet access to all of their residents.

It’s also unclear whether or not the FCC has the ability to preempt the states at all, or if that’s something that should be left to Congress. In August 2016, a federal appeals court ruled that the FCC could not block cities in Tennessee and North Carolina from limiting municipal broadband expansion.

In his announcement, Murphy also noted that New Jersey would be joining 22 other state attorneys general (including the District of Columbia) in suing the federal government over their repeal of net neutrality. The lawsuit maintains that the FCC’s actions were not only “arbitrary and capricious,” but also broke federal law.

“We are committed to taking whatever legal action we can to preserve the internet rights of New Jersey consumers, and to challenge the federal government’s misguided attack on a free and open internet,” Attorney General Gurbir Grewal said in a press release. “If the FCC has its way, ISPs will be able to play favorites on the internet … deciding, essentially, what consumers can do, say and view online.”

State Sen. Shirley K. Turner (D-Mercer) on Monday also introduced legislation that would prohibit the awarding of public contracts to internet service providers that do not adhere to the principle of net neutrality.

“The repeal of net neutrality rules threatens access to the internet and the free flow of information to the public.” Turner wrote in a statement, “We need to take action to protect equal access to the internet for the public and defend our residents against the harm this could cause.