Maryland's Attorney General Says No To Net Neutrality

Yesterday I attended a hearing before the Economic Matters Committee of the Maryland House of Delegates to testify against a proposed Maryland state net neutrality law. The bill has two parts: First, it provides, a la the AT&T/BellSouth merger condition that AT&T and BellSouth were forced to agree to in order to get the FCC's Democrats to act on their merger, that broadband providers "should" not degrade or prioritize "any packet source over that company's broadband Internet access service based on its source, ownership, or destination." Second, the bill requires broadband providers to provide the Maryland PSC with quarterly reports detailing certain information concerning the number of subscribers served, the locations served, and the speed and price of various service offerings. (Note that the FCC already collects much of this information, such as the information that 92% of Maryland's zip codes have present three or more broadband providers.)

My testimony opposing the bill is here. But the most significant news concerning the bill probably came out of Baltimore, where the Maryland Attorney General's office is located, rather than in the Annapolis hearing room where I passed the afternoon. For the Maryland AG issued an opinion that the part of the net neutrality law purporting to prevent discrimination, if enacted, likely would be preempted by federal law. As the AG's opinion summarized, "the general conflict with the stated policies of Congress and of the FCC would also likely to lead to a decision by the FCC to preempt any attempt on the part of a State to impose the type of requirements discussed in the first portion of the bill." (The opinion stated that the AG's office lacks the knowledge of the industry to say if the information reporting requirements would be preempted as well.)

Make no mistake. The AG's opinion is very significant because its analysis applies with the same force to any proposed state net neutrality law purporting to regulate broadband Internet access. State AGs are not known to hastily conclude that state laws are likely to be preempted by federal law and policy. In fact, precisely the opposite. Before seeing the AG's opinion, I testified to the same effect. It was particularly gratifying to see that the AG's opinion followed closely along the lines set forth in Jim Speta's paper, Net Neutrality is a Federal Issue, that was released by FSF last week. Anyone --especially any state legislators considering introducing net neut bills--who hasn't read Professor Speta's excellent legal analysis concluding that state neutrality laws almost certainly would be preempted because they conflict with federal law and policy should do so, along with the excellent Maryland AG's opinion to the same effect.