Recently, a spate of state-side Net Neutrality RESIST efforts have emerged, employing Executive Orders to force repealed, Obama-era Net Neutrality rules on broadband providers if they want to win contracts to service those states.
Montana’s governor was the first to sign one in late January, followed by New York, New Jersey, and, just the other day, Vermont.
These desperate efforts are motivated primarily by anti-Trump animus. To the extent courts OK them – which remains highly unlikely – they will have little effect on the marketplace. They are essentially weak cries in the dark to change something the marketplace already addresses adequately on its own without distorting regulation.
They are something else, too. The EO’s are non-Net Neutrality-compliant, when viewed through the lens of Obama-era Net Neutrality rules.
That law required ISPs offering broadband to serve consumers “without discrimination,” treating all equally and fairly with the same terms and conditions. Bargaining “individualized circumstances,” such as priority deals, was verboten. Standardized terms only, thank you.
The very insistence that these states demand special, “Net Neutrality” terms and treatment in their procurements – which the law no longer requires – is highly ironic. But, it is also Standard Operating Procedure. Typically, states like Montana, New York, New Jersey, Vermont, etc. purchase their broadband / communications services via multi-year, open-bid contracts. These procurements are extremely complex, highly individualized agreements, tailored to the unique needs of each state and their administrations. You won’t find their terms in the Yellow pages or a simple Google search, that’s for certain.
The state contracts are the essence of “fast lanes,” creating a preferred customer – e.g., the state – which ISPs and others must serve accordingly. Sure, there are some valid policy reasons why one might want this (and which also apply to the private sector, by the way), but their existence clearly stands against the one-size-fits-all mandates of Obama-era Net Neutrality.
This should surprise no one. Government at all levels has never played by the rules it crafts for others.
I asked a New York state official who works with the state’s procurement division about the state’s new EO. He noted:
“The comprehensive telecommunications services contract, which is a contract the State uses to purchase internet services from ISPs, is set to expire later this year. When the State sends out a new solicitation to replace this expiring contract, it will include new language that will comply with the [Net Neutrality] EO.”
“You will comply,” says the state (I paraphrase). “We will have our specialized agreement the way we want it if you want our business.”
Of course, this is how Net Neutrality in practice works. The big guys – like the government and Silicon Valley – already have their “fast lanes.” They already stand first in line. They already operate their high-speed CDNs and other technology, which deliver their services faster and more optimally than others.
Isn't that at odds with the intent of Obama’s Net Neutrality law? You bet it is.
But, you know what? I’m alright with that.
The Trump FCC’s repeal of Net Neutrality late last year will enable more of this, especially for the little guy. Importantly, it will allow him / her to use reasonable service differentiation and discrimination practices, just like the big guys, to better compete in the marketplace, enabling all players to employ tools used widely throughout all sectors of our economy to deliver immense benefit to consumers and society.
Now, the little guy has a chance, whereas with the Obama rules, he was locked-out by “fairness” and other hypocritical protectionist policies.
Which brings me back to the EOs.
Do-as-I-say, not-as-I-do orders stink. If “fast lanes” and priority agreements have always worked for you, Montana, New York, New Jersey and Vermont, they should be OK for the marketplace at large, too.
RESIST as you may with your paper EOs and hypocrisy, the marketplace will use any reasonable means it can to deliver its broadband services to customers.
How’s that for an executive order?
Mike Wendy is president of Media Freedom, a 501(c)(3) non-profit organization.
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