Net Neutrality is Dead. Long Live Net Neutrality?

West Virginia may join a string of states that have taken it upon themselves to maintain broadband internet's status as it existed during the “net neutrality” regulatory era, following the repeal of the federal government's net neutrality regulations. Senate Bill 396, sponsored by Senator Richard Ojeda (D-Logan), and cosponsored by almost the entire rest of the Senate Democratic caucus, purports to do just that.

“Net neutrality,” as it is commonly called, refers to the practice of regulating broadband internet service under Title II of the Federal Communications Act, which subjects it to “common carrier” provisions that bar Internet service providers from discriminating against how broadband access is used, or by whom it is used. The net neutrality practice was instituted in February, 2015 by then-FCC Chairman Tom Wheeler, and repealed in November, 2017 by current FCC Chariman Ajit Pai.

Supporters of net neutrality are concerned that, absent the Title II classification, Internet service providers will be permitted to engage in such unsavory practices as restricting access to content which they oppose for ideological or business reasons, charging content providers to have their content accessed by users at specific speeds, or charging users additional amounts to access specific content. Opponents claim that, absent net neutrality regulations, Internet service providers will be less restricted in their practices, and will thus be better able to innovate.

If enacted, Senate Bill 396 would essentially require any Internet service provider operating in West Virginia to behave as they were required to under federal net neutrality, by prohibiting them from blocking, impairing, degrading, or prioritizing lawful, nonharmful content. Further, the bill would make any violation of the provisions created by the bill also a violation of the West Virginia Consumer Credit and Protection Act, which could subject the violator to substantial monetary penalties. Similar bills, or bills with similar goals, have already been introduced in several other states, including California, Massachusetts, Nebraska, New York, and Rhode Island. In addition, Montana Governor Steve Bullock (D) issued an executive order requiring Internet service providers operating in the state to abide by net neutrality. A copy of the bill, as well as tracking information, may be found at http://www.wvlegislature.gov/Bill_Status/Bills_history.cfm?input=396&year=2018&sessiontype=RS&btype=bill.