In a clear middle finger to the Republican-controlled FCC and its chair Ajit Pai, New York Gov. Andrew Cuomo signed an executive order on Wednesday mandating that state agencies only purchase internet service from providers who agree to abide by the net neutrality rules the FCC just threw out.
Per the Washington Post, Cuomo’s order and another passed by Montana Gov. Steve Bullock this week both go the route of determining who the state will sign contracts with rather than attempt to regulate the providers directly—a less powerful and indirect method, but one that is more likely to stand up in court if the FCC objects:
It is the procurement concept at the heart of the executive orders that could prove the most challenging to the FCC, some analysts say. After all, the orders do not seek to impose direct regulations on the providers themselves, but on the customer—the state government.
Whereas the FCC would have a strong case against a state that tried to withhold construction permits to Internet providers that did not abide by net neutrality, it is much less clear how a court would interpret the procurement orders, Berin Szoka, president of the libertarian-leaning think tank TechFreedom, said.
In his version of the order, Cuomo wrote that “Many New York State government services are available only via the internet, and throttling or paid prioritization would limit the ability of many of the most vulnerable New Yorkers to access the internet.”
The order specifically requires service providers to guarantee they will not “block, throttle or prioritize internet content or applications or require that end users pay different or higher rates to access specific types of content or applications.”
The FCC has a mandate to act against supposed barriers to broadband deployment throughout the country, meaning that Pai could potentially intervene if states chose to impose their own net neutrality rules on the general market—and its recent repeal decision included language making it significantly harder for states to do so without risking such preemptive intervention. But it’s not clear whether the orders in New York or Montana qualify as net neutrality rules that the FCC could preempt, per the Verge.
If the orders stand, the impact could be significant. State governments are major customers that ISPs would be loathe to lose, which means the orders could be setting de facto state standards. Per the New York Law Journal, ISPs that currently do business with the state government include “AT&T, BestWeb, Time Warner Cable (now Spectrum), Cablevision, Lightpath and Verizon Business Network Services.”
However, the Journal also reported “The dollar value of the contracts between the state and internet service providers wasn’t immediately available.” The exact amount ISPs could be leaving on the table by walking away from state contracts may be the factor that determines how effective the measures are in practice, as could how stringently states judge various network management practices.
Over 20 states have also elected to sue the FCC over the net neutrality repeal, though the agency likely has a strong case to defend the legality of its decision.