At first glance, Montana and New York State don’t have much in common. New York has a reputation as an urban blue state, though this is partly the result of the general public’s conflation of New York City with the entirety of New York State. Montana is known for being rural, lightly populated, and staunchly Republican, having voted for just two Democratic presidential candidates in 66 years. But in a sign of how certain issues cut across the political spectrum, the two unlikely bedfellows have become the first two states to declare that ISPs competing within their borders must take steps to protect the same principles and goals that were, until recently, enshrined as part of the FCC’s net neutrality order.
The two declarations aren’t identical. In Montana, governor Steve Bullock ordered that any ISP wishing to compete for state contracts must adhere to net neutrality principles, including:
- Accurate disclosure of its network management practices, including cellular data and wireless broadband.
- The performance and terms of its broadband services. The information provided must be sufficient to allow consumers, business, and application developers to make informed decisions about whether the service will meet their needs now and in the future.
ISPs are forbidden from blocking any kind of lawful content (subject to “reasonable network management” that is disclosed to the consumer) and explicitly banned from engaging in paid prioritization. ISPs are also barred from interfering with or unreasonably disadvantaging the ability of users to select, access, and use the broadband internet services, content, applications, services, or devices of their choice.
Importantly, these requirements are explicitly held to apply to every customer within the state of Montana, not merely to the state government itself. The new rules take effect on July 1, 2018.
In New York State, governor Andrew Cuomo has signed a similar rule, with one major difference. While the Montana executive order forbids ISPs from engaging in paid prioritization, the New York State order goes one step further, and also bans ISPs that wish to compete with state contracts from requiring that “end users pay different or higher rates to access specific types of content or applications.”
The two protections are subtly different. Banning paid prioritization means that means that an ISP can’t charge more money for services it provides today as a base part of the service package. Applications that depend on low latency, like games, could be harmed if paid prioritization is allowed, as this gives ISPs every incentive to artificially limit player pings until and unless you pay a premium to remove the penalty. In areas where players have little to no ISP choice, they’d be left with few options besides giving up a beloved hobby or forking over whatever the ISP demanded.
Banning an ISP from charging more to access specific types of content means Comcast, for example, isn’t allowed to charge you $ 5 per month in exchange for the right to access specific streaming video services (like Netflix) other than those it bundles as part of your monthly service package. It’s related to paid prioritization, in the sense that you’re paying for access privileges. But in this case you’d be paying for the right to access content you can access today for free, rather than for acceptable performance. The Cuomo executive order takes effect on March 1, 2018.
With Congressional attention currently focused on immigration and efforts to fund the government in 2018, the chance that the House and Senate will act before the FCC’s 60-day window closes and the net neutrality repeal becomes final are slim. If the 22 states suing to block the net neutrality repeal are unsuccessful, state-level legislation and executive orders will have to hold the line.