More state bills are expected

Morrow told Ars he is concerned about his bill facing opposition from Internet providers, though he noted Comcast already offers a low-cost plan in Vermont that “just needs to be advertised better.” Morrow said he modeled his bill on the New York law and that he is optimistic about its passage.

“I am optimistic, but there is a lot going on right now, so it is certainly not guaranteed,” he said.

More state bills are expected. “A number of states will consider stepping into the vacuum left by the FCC and the courts deciding that the FCC does not have jurisdiction over broadband networks and Congress letting the ACP expire,” New Street Research Policy Advisor Blair Levin told Ars. Levin was chief of staff to FCC Chairman Reed Hundt during the Clinton years and oversaw the writing of the US National Broadband Plan during the Obama administration.

“I expect more [states] will focus on helping low-income households than on net neutrality,” Levin continued. “There may be other broadband-related issues that states may explore, including but not limited to network resiliency, public safety, and billing transparency.”

ISPs will fight the laws at the state level and urge the FCC to preempt them, Levin noted. But the FCC lost an attempt to preempt all state net neutrality laws during the first Trump administration, with a federal appeals court saying that “in any area where the Commission lacks the authority to regulate, it equally lacks the power to preempt state law.”

States should not view legal challenges as a major roadblock, van Schewick told Ars. “The case law is now abundantly clear that when the FCC is powerless to protect consumers online, the states can step in to protect their residents,” she said. “They can create their own net neutrality protections, like California and others do, require affordable broadband options like New York, and institute broadband privacy protections like Maine. All of these laws have been upheld in court.”

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“The key here is not whether Broadband Internet Service Providers utilize telecommunications; it is instead whether they do so while offering to consumers the capability to do more,” Griffin wrote, concluding that “they do.”

“The FCC exceeded its statutory authority,” Griffin wrote, at one point accusing the FCC of arguing for a reading of the statute “that is too sweeping.”

The three-judge panel ordered a stay of the FCC’s order imposing net neutrality rules—known as the Safeguarding and Securing the Open Internet Order.

In a statement, FCC chair Jessica Rosenworcel suggested that Congress would likely be the only path to safeguard net neutrality moving forward. In the federal register, experts noted that net neutrality is critical to boosting new applications, services, or content, warning that without clear rules, the next Amazon or YouTube could be throttled before it can get off the ground.

“Consumers across the country have told us again and again that they want an Internet that is fast, open, and fair,” Rosenworcel said. “With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open Internet principles in federal law.”

Rosenworcel will soon leave the FCC and will be replaced by Trump’s incoming FCC chair pick, Brendan Carr, who helped overturn net neutrality in 2017 and is expected to loosen broadband regulations once he’s confirmed.

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