• by Wendy Davis  @wendyndavis, February 18, 2019

A battle over net neutrality is heating up in Vermont -- one of at least eight states that recently moved to restore the Obama-era rules.

Vermont's net neutrality law, passed last May, prohibits broadband access providers that contract with state agencies from violating the former rules -- including ones prohibiting blocking or throttling and charging higher fees for prioritized delivery. The Vermont law also prohibits companies from violating a “general conduct” standard -- which prohibits carriers from unreasonably impeding the ability of consumers and content providers to reach each other.

Last year, industry associations including the American Cable Association, CTIA, NCTA, and USTelecom -- which represent broadband carriers -- sued in federal court to block Vermont's law.

Vermont officials fired back that broadband industry groups shouldn't be allowed to proceed in court, given that their members made well-publicized promises to refrain from violating net neutrality principles. The state argues that if the providers aren't violating net neutrality, they won't be harmed by the new law and therefore, have no grounds to sue.

But the broadband groups counter that their definition of “net neutrality” may differ from Vermont's.

“Comcast will be harmed by any application of the state's prohibition on blocking, throttling, and paid prioritization in a manner inconsistent with Comcast's stated commitments,” Mark Reilly, senior vice president at Comcast Cable, stated in a declaration filed last month with the U.S. District Court in Vermont in Burlington.

Comcast also has not publicly promised to follow the “general conduct” standard -- which the company has criticized as too vague.

Reilly stated in his court papers that Comcast delayed the launch of Stream TV, while the Federal Communications Commission investigated to determine whether the service would violate the general conduct standard.

In November of 2015, Comcast said it was going to launch Stream, which enables broadband-only subscribers to access many of the same programs that cable customers can watch.

The introduction was controversial -- and led to FCC scrutiny -- because Comcast said videos watched through Stream would be exempt from usage-based billing; at the time, accounts subject to usage-based billing could only consume 300 GB of data a month before incurring overages. (Comcast later increased its the the maximum to 1 TB a month.)

“Although the FCC ultimately closed the investigation without taking any enforcement action, the substantial uncertainty led to an 18-month delay in the launch of Stream TV,” Reilly stated. “Comcast is now subject to these types of harms again to the state's re-imposition of the Internet Conduct Standard.”

Last week, Vermont officials asked U.S. District Court Judge Christina Reiss to reject the broadband industry's arguments. The state argues that Reilly's statements about Stream TV don't establish that Vermont's law is interfering with any current plans.

“Mr. Reilly does not state or suggest that Comcast is currently being investigated by anyone, or suggest that any potential future offerings Comcast is considering are likely to imminently be investigated by anyone,” the state argues.

Vermont officials add that Comcast bid on a state contract last July, and certified at the time that it was in compliance with the new law.

The FCC voted in December of 2017 to revoke the Obama-era rules and to prohibit states from passing their own measures. Tech companies, advocacy groups and others are challenging that decision in court. The D.C. Circuit Court of Appeals heard arguments earlier this month, and is still considering whether to uphold all or part of the December 2017 order.

After the FCC voted to repeal the former rules, the governors of Rhode Island, New York, New Jersey, Montana and Hawaii signed orders similar to the one in Vermont, while the state legislature in Oregon passed a bill banning state agencies from contracting with broadband providers that violate net neutrality principles.

Washington State passed a more comprehensive law that prohibits broadband providers operating in the state from blocking or throttling traffic and from charging companies higher fees for prioritized delivery.

California enacted a broad net neutrality law that prohibits broadband providers from blocking or throttling traffic, charging higher fees for fast-lane service, and from exempting their own video streams from consumers' data caps. That measure faced an immediate court challenge by the Department of Justice, American Cable Association, CTIA, NCTA, and USTelecom. In October, California agreed to hold off on enforcing that law.