Montana is enforcing net neutrality with new executive order

State enforces net neutrality in government contracts, despite FCC preemption.

Montana will require Internet service providers to follow net neutrality principles in order to receive state government contracts.

Governor Steve Bullock, a Democrat, today signed an executive order imposing that requirement beginning July 1, 2018.

"There has been a lot of talk around the country about how to respond to the recent decision by Federal Communications Commission to repeal net neutrality rules, which keep the Internet free and open," Bullock said. "It's time to actually do something about it. This is a simple step states can take to preserve and protect net neutrality. We can't wait for folks in Washington, DC, to come to their senses and reinstate these rules."

A copy of the governor's order was published by the Independent Record.

The FCC's repeal of net neutrality rules scrapped the US-wide regulations, and it preempts state and local governments from enacting their own, similar net neutrality rules.

End-run around FCC preemption

Montana's attempt to enforce net neutrality rules could be challenged in court. But Bullock is attempting to sidestep the FCC's preemption by making net neutrality a condition of state contracts rather than a law applying broadly to any Internet service.

"The order directs that, to receive a contract from the State of Montana for providing telecommunications services, the service provider must not block lawful content, throttle, impair, or degrade lawful Internet traffic on the basis of Internet content, engage in paid prioritization, or unreasonably interfere or disadvantage the users' ability to select, access, and use broadband Internet access service," Bullock's announcement said.

The executive order attempts to extend the net neutrality protections to residents and private businesses in Montana. To qualify for state contracts, ISPs must not violate net neutrality principles "with respect to any consumer in the State of Montana (including, but not limited to, the State itself)," the order says.

"Many major landline and mobile broadband providers, including Charter, CenturyLink, AT&T and Verizon, hold government contracts in the state," The New York Times wrote today.

The state's announcement said Bullock is the first governor to take this action. But there is net neutrality legislation pending in several other states.

Separately, 21 states and the District of Columbia are suing the FCC to overturn the net neutrality repeal and preemption of state rules.

The FCC's preemption authority does have limits, and those limits will be tested in the states' lawsuit against the FCC. A previous FCC decision to preempt state laws that restrict the expansion of municipal broadband was struck down by a federal appeals court.

Montana is not one of the states suing the FCC. Montana has a Republican attorney general, and only states with Democratic attorneys general have joined the lawsuit.