• by Wendy Davis  @wendyndavis, October 27, 2017

Verizon is urging the Federal Communications Commission to prohibit individual states or towns from moving forward with proposed new broadband regulations, including laws aimed at preserving net neutrality and regulations intended to protect web users' privacy.

"Allowing every state and locality to chart its own course for regulating broadband is a recipe for disaster," Verizon argues in a 20-page white paper submitted to the FCC this week. "It would impose localized and likely inconsistent burdens on an inherently interstate service, would drive up costs, and would frustrate federal efforts to encourage investment and deployment by restoring the free market that long characterized Internet access service.

The telecom's comments come as the agency is considering whether to revoke the 2015 net neutrality rules. Those regulations reclassified broadband as a utility service and imposed some common carrier rules on broadband providers, including prohibitions on blocking or throttling service, and charging content companies higher fees for faster delivery.

The FCC's decision to classify broadband providers as utility companies also empowered the agency to subject Internet service providers to privacy rules. Last year, the FCC passed a set of privacy regulations that would have required broadband providers to obtain subscribers' explicit consent before using their online browsing history for ad targeting. But this year, Congress repealed the measure. That decision was unpopular; a survey by Huffington Post and YouGov showed that more than 70% of Republicans and Democrats wanted Trump to veto the repeal.

Following the repeal, lawmakers in California, New York, New Jersey and more than a dozen other states introduced bills restricting providers' ability to draw on consumers' web-surfing data for ad purposes. Those efforts have not yet moved forward on the state level, but could do so in the future.

Verizon argues that the federal repeal of the privacy laws would justify an FCC decision to preempt similar laws at the state level. "Allowing states or localities to impose their own privacy regimes would stand as a direct obstacle to Congress’s and the President’s intent to secure a uniform, national privacy standard for ISPs," the company writes.

The company also contends that state laws could end up having a nationwide effect, arguing that technology companies will find it too difficult to follow different rules in different areas. "In the absence of preemption, States with the most restrictive rules effectively would have the final say on the appropriate level of regulation, as many broadband providers as a practical matter will need to comply with the strictest state rules," Verizon writes.

An attempt by the FCC to preempt state privacy laws may not hold up in court, especially if the agency reverses the decision to classify broadband as a utility service, according to Ernesto Falcon, a privacy advocate with the Electronic Frontier Foundation. That's because, traditionally, federal regulators only preempt state laws that conflict with an overarching federal scheme, Falcon says.

The FCC's authority over broadband privacy stems from the classification of broadband as a utility service, regulated under Title II of the Communications Act; if the FCC reverses that classification, the agency will also lose its authority to impose privacy regulations on broadband providers. "If Title II does not apply to them, they cannot argue (state laws) conflict with a federal scheme," Falcon says.

Commissioner Michael O'Rielly recently said he thought states should be prohibited from enacting broadband privacy rules, but it's unclear whether the FCC will vote to do so.