Protecting Net Neutrality at the State and Local Level


In December, the Republican-controlled Federal Communications Commission (FCC) repealed net neutrality rules that ensured that all internet traffic be treated equal. During the Obama years, the FCC classified the internet as a “Title II common carrier,” mandating that the internet be treated as a public utility and be provided to the public without discrimination. With the repeal of the “Title II” classification, your internet service provider (ISP) could now slow down or charge you more to access certain websites.

Can states and municipalities do anything to protect net neutrality?

The short answer is yes and no. The FCC has tried their hardest to make states powerless to protect net neutrality but there are still a few avenues for action.

Four avenues for state and local action

  1. State attorneys general can sue the FCC.
  2. State legislatures can introduce legislation to promote net neutrality.
  3. State governors can promote net neutrality via executive order.
  4. Municipalities can create local broadband networks that are net neutral.

Hover over your state below to find out what actions you can take in your state. States in green have passed net neutrality legislation; states in red are currently considering net neutrality legislation; states in blue haven't taken any legislative action yet.

1) States can sue the FCC.

New York Attorney General Eric Schneiderman had encouraged the FCC to delay their vote after discovering that 2 million identities were stolen for fake comments submitted during the FCC’s public comment period. The FCC refused to cooperate so AG Schneiderman announced a multi-state lawsuit against the FCC ruling on the grounds of the public comment period being corrupted.

22 states have already signed on to this lawsuit: New York, California, Virginia, Illinois, Pennsylvania, Connecticut, Delaware, Hawaii, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington, and DC.

Call your state attorney general and ask them to join the lawsuit against the FCC ruling if they have not already.

Sample call script:

Caller: Hello! My name is ___ and I’m calling from [part of state]. I’m calling to ask Attorney General ________ to join the multi-state lawsuit against the FCC repeal of net neutrality.

If the staffer says that the AG supports net neutrality:

Staffer: The attorney general supports net neutrality and is looking into the possibility of joining this case.

Caller: Great! I really appreciate attorney general ____ fighting for internet freedom. Please give him/her my thoughts and have a nice day!

If the staffer argues that there is no legal case to be made:

Staffer: The attorney general does not believe there is a legal case to be made against the FCC ruling.

Caller: New York Attorney General Eric Schneiderman believes there is a case to be made due to the flood of fake comments to the FCC website during the comment period. 16 other states have already joined the case. A free and open internet is important for all Americans. I urge AG _____ to reconsider and join the case.

Staffer: I’ll pass along your thoughts.

Caller: Yes, please do. I strongly support net neutrality and I expect AG ___ to do the same. Please take down my contact information so you can let me know if the AG changes his/her mind.

2) States can pass legislation to promote net neutrality.

The FCC tried to make states powerless by explicitly including a “federal pre-emption” clause to try to prevent states from enacting their own local versions of net neutrality.

What is federal pre-emption?

When state and federal laws are in direct conflict, federal pre-emption means that the federal law takes precedence over state law. In order for federal agencies like the FCC to pre-empt the state law, they must include an express provision in their statues. In this case, the FCC did include a section in their order that declares that states are not allowed to institute their own versions of net neutrality.

So doesn’t this mean that the states are powerless?

Not exactly. The states are not buying into the idea that the FCC is allowed to pre-empt them, which is clear from the flurry of state legislation that has been introduced already. Furthermore, there is already some legal precedent for limiting the authority of the FCC to pre-empt states. In 2015, the FCC tried to pre-empt states from regulating municipally-owned broadband providers and they were struck down in the courts. It is clear that the states are ready and willing to go to the courts for this. The more states that are involved in potential litigation, the better. And there are also other avenues outside of legislation for states and localities to fight for a free and open internet.

So what are states doing?

Several states are ignoring the federal pre-emption and directly banning ISPs from blocking or throttling content or engaging in paid prioritization.

Other states are developing creative strategies to promote an open internet in their home states without explicitly violating the preemption.

  • States can create a process for ISPs to certify they are net neutral and then give incentives to those that are or withhold state benefits from those that are not.
  • State governments can refuse to do business with ISPs that are not certified net neutral.
  • State governments can promote and provide incentives for municipal broadband networks that are net neutral to encourage competition in the broadband marketplace.
  • Some states have jurisdiction over their utility poles - Alaska, Arkansas, California, Connecticut, Delaware, District of Columbia, Idaho, Illinois, Kentucky, Louisiana, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Ohio, Oregon, Utah, Vermont, and Washington. While the FCC order explicitly discourages this practice and claims it will take action against it, theoretically these states could mandate neutrality as a condition for usage of utility poles.

Three state legislatures — WA, OR, VT — have passed legislation to promote net neutrality in their home states. Six states — CA, MA, NJ, NY, PA, RI — are still in session and considering net neutrality legislation now!

Use the map above to learn more about whether your state has introduced net neutrality legislation. Call your state representatives and ask them to support any legislation that has been introduced! If your state has not introduced legislation, call your state representative and ask them to introduce legislation next year.

Call your state representatives and ask them to introduce legislation to protect net neutrality with the above provisions.

Sample call script:

Caller: Hello! My name is ___ and I’m calling from [part of state]. I’m calling to ask state representative ________ to introduce legislation to protect net neutrality in our home state.

Staffer: _______ believes in net neutrality but the FCC order has preempted states from enacting net neutrality.

Caller: I know that the FCC has preempted state action. However, California and Washington are considering other options that do not violate the preemption that would still protect the internet. For example, they are considering incentivizing net neutrality and prohibiting the state government from doing business with non-neutral ISPs. (If your state has jurisdiction over utility poles: Additionally, we could make use utility poles conditional on neutrality.) Would _____ consider introducing similar legislation here in our state?

Staffer: These are interesting ideas. I will pass along your thoughts.

Caller: Yes, please do. I strongly support net neutrality and I expect representative ___ to do the same. Please take down my contact information so you can let me know if the representative changes his/her mind.

3) State governors can promote net neutrality by executive order.

Governors can and should condition the purchasing power of state governments state contracts on neutrality. Montana’s governor Steve Bullock became the first governor to sign an executive order declaring that the state cannot do business with ISPs that are not net neutral. New York’s governor Andrew Cuomo quickly followed suit. Governor Bullock even created a template order for other states & localities to use. To date, eight governors have signed similar executive orders. 

Call your state governor and ask them to protect net neutrality via executive order.

Sample call script:

Caller: Hello! My name is ___ and I’m calling from [part of state]. I’m calling to ask the governor to protect net neutrality via executive order like Montana and New York have done.

Staffer: _______ believes in net neutrality but the FCC order has preempted states from enacting net neutrality.

Caller: I know that the FCC has preempted state action. However, Montana and New York’s executive orders would not likely violate the pre-emption. Those orders use the purchasing power of the state government to condition state contracts on net neutrality. Would Governor _______ consider implementing a similar executive order here in our state?

Staffer: These are interesting ideas. I will pass along your thoughts.

Caller: Yes, please do. Governor Bullock from Montana has made a template order available that we could use. I would be glad to send along that template.

4) Municipalities can create local broadband networks that are net neutral.

A hyperlocal way to ensure net neutrality is for cities to create their own independent internet provider. Being free from the whims of companies such as Verizon and Comcast, localities can ensure that their public internet is net neutral. Unfortunately, 20 states* have posed some barriers to enacting municipal broadband. In those states, state lawmakers need pressure to overturn the roadblocks. In other states, local mayors and city councils could work to establish municipal broadband.

* Alabama, Arkansas, California, Colorado, Florida, Iowa, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, Washington, Wisconsin

If your state has banned municipal broadband, call your state representative and ask them to write legislation to remove the barriers to local implementation of broadband.

Sample call script:

Caller: Hello! My name is ___ and I’m calling from [part of state]. I’m calling to ask state representative ________ to introduce legislation to allow municipal broadband to be introduced by cities in our state.

If your representative supports municipal broadband:

Staffer: Thanks for your call. Representative _____ does support municipal broadband.

Caller: Will he/she introduce legislation to roll back the restrictions that are currently in place?

Staffer: I’ll pass along your thoughts.

Caller: Yes, please do. I strongly support net neutrality and I expect representative ___ to do the same. Please take down my contact information so you can let me know if the representative changes his/her mind.

If your representative does not support municipal broadband:

Staffer: Thanks for your call. Representative ____ does not support municipal broadband and does not believe taxpayer money should be used to provide internet for constituents.

Caller: With the repeal of net neutrality, it’s more important than ever to allow cities to establish their own broadband that is net neutral. Internet service providers are almost unchecked monopolies at this point. If my representative believes in the free market, he/she should work to encourage broadband competition.

Staffer: I’ll pass along your thoughts.

Caller: Yes, please do. I strongly support net neutrality and I expect representative ___ to do the same. Please take down my contact information so you can let me know if the representative changes his/her mind.

Otherwise, call your local mayor or city councilmember and ask them to establish municipal broadband in your town.

Sample call script:

Caller: Hello! My name is ___ and I’m calling from [part of city]. I’m calling to ask Mayor _____ to work towards establishing municipal broadband in our city.

If your mayor supports municipal broadband:

Staffer: Thanks for your call. The mayor supports municipal broadband and is looking into this idea since the repeal of net neutrality.

Caller: Great! I really appreciate mayor ____ working to encourage competition in the broadband marketplace.. Please give him/her my thoughts and have a nice day!

If your mayor does not support municipal broadband:

Staffer: Thanks for your call. Mayor ____ does not support municipal broadband and does not believe taxpayer money should be used to provide internet.

Caller: With the repeal of net neutrality, it’s more important than ever that cities to establish their own broadband that is net neutral. Internet service providers are almost unchecked monopolies at this point. If my representative believes in the free market, he/she should work to encourage broadband competition here in our city.

Staffer: I’ll pass along your thoughts.

Caller: Yes, please do. I strongly support net neutrality and I expect Mayor ___ to do the same. Please take down my contact information so you can let me know if the Mayor changes his/her mind.