By W. Michael Gillette
Last week the legislature passed House Bill 4155, which seeks to preserve net neutrality protections for the internet in Oregon. Undoubtedly, the governor will sign it soon.
Politically, a vote on net neutrality is easy. Many people support a free and open internet, one that allows access to all content equally. In fact, a mid-December national survey showed 83 percent voter support for net neutrality.
The bill's legal effectiveness, however, is another matter.
HB4155 opens the state up to costly litigation on the basis of federal law preempting state action. Why is that? From a legal standpoint, the internet is inherently an interstate service that is regulated on a federal level like other interstate commerce -- not by a patchwork of state laws. This has been well established by Congress and Federal Communications Commission orders, and affirmed by the courts.
Oregon's version of the law attempts to sidestep federal preemption by focusing only on government contracts with internet providers, not on services provided to the general Oregon consumer. But even this more limited version of net neutrality legislation conflicts with the role the Federal Communications Commission and the Federal Trade Commission play in regulating on the federal level.
Under the bill, Oregon's Public Utility Commission is given wide latitude to determine whether particular ways in which services are provided involve "legitimate" network management practices, provide "significant public benefits" or would harm the "open nature" of the internet. Whatever else it may be called, making such rulings is essentially regulating on the state level. These same determinations are left to the FTC and FCC under federal law, preempting and rendering meaningless what the state utility commission does. This wastes state resources and sows confusion in the market - all for naught.
It is easy to dislike internet providers. Their pricing often seems arbitrary, as do the occasional outages and slowdowns. To protect consumers, those providers need to be regulated. For example, a recent federal appeals court decision in a dispute between the Federal Trade Commission and AT&T has been heralded as a win for consumer protection, and a confirmation of the trade commission's role in regulating telecommunications.
Some might suggest that legislators are aware of the legal difficulties, but are proceeding anyway as a way to pressure Congress to provide more comprehensive rules on the subject. But few (if any) legislators will admit to that purpose and, without a crystal ball, it's impossible to know if such a ploy -- if that is what it is -- will work. What is more certain to occur is litigation, probably expensive and certainly paid for in part by Oregon residents, as internet providers and states seek clarity as to the rights of one and authority of the other. Attorneys will do quite well. I'm not so certain the same will be true of the public.
As much as voters have said they support a free and open internet, their legal and legislative options on the state level are limited. We need to take the case to Congress. Now if only it would act.
W. Michael Gillette is an attorney with Schwabe, Williamson & Wyatt. He served for nearly nine years on the Oregon Court of Appeals, and then served 25 years on the Oregon Supreme Court.