On February 27, 2018, the Washington State Senate passed Substitute House Bill 2282, “An Act Relating to Protecting an Open Internet in Washington State.” The law implements, at the state level, the net neutrality regulations repealed by the US Federal Communications Commission (FCC) on December 14, 2017. Washington is the first state to implement its own net neutrality requirements following the FCC’s repeal.

Beginning in 2015, the FCC regulated high-speed internet delivery as a common carrier under a Title II designation under the US Federal Communications Act. As a common carrier, Internet Service Providers (ISPs) were prohibited from making any unjust or unreasonable discrimination in charges, and from giving any undue or unreasonable preference to any person. By repealing the net neutrality regulations, the FCC returned to the pre-2015 approach of regulating ISPs as a Title I “information service”. Practically, this means that ISPs would be able to give preference to certain websites and certain kinds of data; for instance by allowing access to some music streaming services (which could be affiliated with the ISP) at a lower rate than others (which could be affiliated with the ISP’s competitors). For more E-TIPS® Newsletter coverage of the FCC’s repeal, see our past coverage.

Substitute House Bill 2282 is intended to re-impose net neutrality requirements on ISPs that operate in Washington State. In particular, the state law requires ISPs to publicly disclose accurate information regarding their network management practices. It prohibits ISPs from blocking lawful content, impairing or degrading lawful traffic on the basis of content, or engaging in paid prioritization. There are exceptions to some of these prohibitions based on “reasonable network management.”

Further, unlike the regulation of ISPs under the Communications Act, the new law applies to “Any person providing broadband internet access service in Washington State”. Therefore the new law applies to the services offered by ISPs, without putting the discretion to impose these requirements on ISPs in the hands of an administrative body (such as the FCC).

Summary By: David Bowden

E-TIPS® ISSUE

18 03 21

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