One man’s perspective on stories that matter. Look for these posts on ILSR.org and the landing page for my work, From the Desk of David Morris.
Table of Contents:
Trump Tries to Kill Obamacare. States Try to Keep It Alive
Death by a thousand cuts. That’s how Donald Trump is trying to kill Obamacare. But states are battling back, cut by cut, to stop the bleeding and keep Obamacare alive.
To understand these battles we need to understand the terrain. To do that we need to step back and see how the individual pieces of the American Care Act fit together.
Think of Obamacare as a three legged stool. One leg consists of obligations imposed on insurance carriers: broad coverage to everyone, including those with pre-existing conditions, at similar rates, no annual or lifetime payment caps, etc.
The obligation to treat everyone equally and fairly inherently raises the cost of healthcare and thus premiums, including for those of us who are healthy and have few medical expenses. From the beginning, Republicans have railed against this, “we’re all in the same boat mentality,” and firmly, even ferociously promoted a different perspective: the goal of health care policy, as with all policies, should be to create a system where it is every man for himself. (I choose the gender consciously given the principal complaint of many Republicans: men having to pay higher premiums so that women who incur higher health costs, pay lower rates.)
To offset the higher cost from not being able to deny coverage to those with higher medical risks, Obamacare added a second leg: an individual mandate that brings millions of younger and largely healthier into its marketplace.
The third leg consists of government subsidies to keep premiums down, primarily refundable tax credits for individuals and cost sharing reduction payments for insurance companies.
For 18 months the Trump Administration has been slashing at these legs, trying to make the stool wobbly and eventually unsupportable. Each attack has found state seeking, and surprisingly often, finding a way to repair or alleviate the damage. Here are some of the federal assaults and states’ responses.
Trump cut the enrollment period in half and slashed the budget for publicizing enrollment even more — by an astonishing 90 percent, from $100 million to $10 million. Nine of the 12 states that run their own exchanges (and therefore have more flexibility), extended their enrollment period. A number of states even increased their own outreach. California went furthest, hiking its overall budget for marketing, advertising and sales by 11 percent to $111 million.
Eliminating the Individual Mandate
In December 2017, Congress cut off one entire leg of Obamacare by eliminating the individual mandate, reducing the number of healthier people enrolled in the ACA exchanges.
States have responded in two ways. One is to enact their own individual mandates. New Jersey and Vermont did this in mid-2018 joining Massachusetts, which did so over a decade ago as part of RomneyCare. At least half a dozen other states are considering adopting similar legislation.
A more prevalent state strategy has been to create reinsurance companies to protect health insurance companies against unexpectedly high claims. The impact on premiums from reinsurance is seen clearly in Minnesota, a state that requires insurers to submit premium rates with and without reinsurance. Those with reinsurance had rates approximately 20 percent lower.
Originally, reinsurance was part of the third leg of Obamacare, but federal funds for this ended in 2016. The result was significant premium rate increases. Reinstating federal reinsurance, according to a RAND study could reduce federal spending by $2.9 billion to $13.1 billion. To undermine Obamacare, Congressional Republicans prefer to spend the extra money.
States can establish state-based programs by obtaining an ACA 1332 waiver that allows them to fund reinsurance with the federal money that would have otherwise have been spent on larger premium subsidies. Alaska offers a concrete example of how this works. Before creating a state reinsurance system, individual market premiums were projected to increase 42 percent in Alaska in 2017. After reinsurance, rate increases fell to 7.3 percent. Alaska invested $55 million in reinsurance. It received back about $48 million from federal savings from reduced tax credits.
As of early June 2018, Minnesota, Oregon, and Alaska have been approved for 1332 waivers. Twelve other states have enacted laws enabling their Governors to ask for waivers. The National Council of State Legislatures offers an up-to-date map.
Eliminating Cost Sharing Reduction
Aside from reinsurance, the ACA has offered two major subsidies to reduce the cost of premiums: a refundable tax credit and cost sharing reduction payments. The refundable tax credit varies based on income for those earning up to 400 percent of the federal poverty line (FPL). In 2017, tax credits were paid to approximately 8 million persons for a total of $34 billion.
Cost Sharing Reduction (CSR) payments went to insurance companies to reduce co-payments and deductibles for about 7 million enrollees earning 100-250 percent of the FPL. In 2017, the federal government paid about $7 billion in CSR subsidies.
The subsidies given to ACA enrollees are about the same as the subsidies given to the majority of Americans who have private insurance through their employers.
It may be enlightening to point out that the subsidies given to ACA enrollees are about the same as the subsidies given to the majority of Americans who have private insurance through their employers. Employer premium payments are not subject to the payroll or income taxes that are taken out of employees’ wages. That arrangement primarily benefits middle- and upper-income people. According to a 2008 study by the Joint Committee on Taxation, by not paying taxes on health benefits people with incomes less than $30,000 saved about $1,650 while people with incomes above $200,000, saved about $4,580.
In November 2017, Trump abruptly cut off the CSR three weeks before the open enrollment period began. To explain the state response to this cutoff, bear with me. I must spend a couple of minutes in the weeds (What you say, hasn’t this discussion already put us pretty deep into the weeds?).
ACA enrollees choose among plans grouped in four “metal levels” each defined by the percentage of average medical costs the plan will cover. The least expensive Bronze plans have 60 percent coverage; Silver plans cover 70 percent, Gold plans 80 percent, and Platinum plans 90 percent.
CSR is available only to enrollees with Silver plans. CSR boosts the percentage of average medical costs covered from 70 percent to as high as 94 percent for those with incomes up to 150 percent of the FPL.
When Trump threatened to cut off CSR payments many states adopted a clever strategy that results in the federal government spending the same amount of money on the same number of people but from a different pot.
Here’s how it works. States make up for the loss of CSR payments by raising the cost only of silver plans, the majority of whose enrollees qualify for tax credits that will largely or completely offset the premium increases. To hold harmless those who have silver plans but are ineligible for tax credits, some states like California go a step further. They actively encourage unsubsidized silver plan enrollees to switch to off-exchange silver coverage whose cost is not increased because of the loss of the CRS. Consumers who do receive subsidies are encouraged to continue to shop on the exchange.
Charles Gaba calls this strategy the “Silver Switcheroo.” He and others insist, “Going this route holds most enrollees harmless while actually improving affordability and comprehensiveness of coverage for enrollees with incomes between 200-400 percent FPL, an income group in which take up of marketplace offerings has been weak.”
Everyone wins, except the federal government. A Congressional Budget Office report estimated that ending CSR would increase insurance premiums by around 20 percentage points, resulting in increases in tax credit subsidies that would add nearly $200 billion to the budget deficits over the following decade.
Encouraging Association Health Plans
As Michael Ollove reports in Stateline, association health plans have been around since the 1970s when Congress, responding to scandals involving private sector pension plans, passed the Employee Retirement Income Security Act (ERISA), which broadly preempted state authority to regulate employee benefit plans, including health plans, even as it acknowledged state power to regulate health insurance.
“That apparent contradiction did not go unnoticed,” Ollove notes. Criminals took advantage of the ambiguity.
Some operators successfully argued in court cases that because they were running ERISA plans, they were exempt from state health insurance regulation.
Scams proliferated. In California between 1977 and 1982, 45 multiple employer arrangements, most if not all of them association health plans, shut down. Eighteen went bankrupt.
Between 2000 and 2002, according the U.S. General Accounting Office, 144 association health plans that had not been authorized to sell health benefits coverage were operating across the country. Those plans failed to pay at least $252 million in medical claims by at least 15,000 employers and more than 200,000 policyholders.
As Sarah Kliff reports in Vox, health insurance that skirted state rules was a better deal for businesses with young and healthy employees, who are more likely to prefer skimpier health plans. A former insurance regulator described the situation prior to the ACA to Kliff as, “a race to the bottom, with some associations offering lower-cost plans that covered virtually nothing.”
The ACA made most association health plans subject to the same requirements as other health insurance plans sold to individuals or small businesses. Many disappeared.
In mid-June the Trump administration overturned Obamacare’s restrictions.
New association health plans will not be required to cover essential health benefits, nor will they be subject to premium rate restriction nor will they need to follow ACA’s rules in determining eligibility and they will be easier to set up. The new rules expand access to association health plans beyond small businesses, allowing self-employed individuals with a shared interest (industry or geography, for example) to join.
“The clear intent…is to create a parallel insurance market exempt from many of the consumer protections in the Affordable Care Act,” said Larry Levitt at the Kaiser Family Foundation. “This has the potential to siphon off healthy people with skinnier benefits and cheaper premiums, leaving behind a sicker pool of people under ACA plans.” This will force insurers to raise rates, leading to others to leave the ACA, resulting in a death spiral.
So far states appear to be considering their options in responding to the new federal rules. The ERISA law complicates the issue of state power. Immediately after the new rules were issued, the National Academy of State Health Policy of health plans held a webinar that evaluated possible responses.
Encouraging Short Term Limited Duration Health Plans
The new rules regarding short-term limited duration (STLD) health insurance policies will have a similar destructive dynamic as the new rules regarding Association health plans. Designed for people experiencing a temporary gap in health coverage, these policies have been offered to individuals for years. Insurers can exclude coverage for pre-existing conditions, impose annual and lifetime spending limits and restrict coverage. A Kaiser Family Foundation survey of 24 short-term plans sold in 45 states found that none covered maternity care.
Before the new rules were issued, STLD policies were sold for no more than 3 months and were not renewable. The new rules allow a 12-month duration and further allow consecutive renewals, thus enabling consumers to re-enroll for an indefinite period of time.
States have significant leeway in regulating short-term insurance policies. Three states, Massachusetts, New Jersey and New York ban the sale of short-term plans outright. Many others impose regulations that limit their sale or impose some form of consumer protections, such as mandating specific benefits. A Commonwealth Fund Report provides a map of state responses.
A new analysis, by the Urban Institute estimates that the expansion of association and short term health plans will result in almost 10 million people leaving the ACA exchanges. They will pay lower premiums but their policies will have ceilings on insurance payments and skimpier coverage and higher deductibles. For the rest of the enrollees, their departure will increase premiums by an average 16.4 percent across the country and by much more in those states that do not take respond.
In February 2018 the Republican Party embraced the nuclear option by directly attacking the first leg of Obamacare: the obligations it imposes on insurers. Twenty Republican Attorneys General filed suit, arguing that after Congress eliminated the individual mandate the mandatory obligations are no longer tenable and must be overturned. In June the Justice Department declared it will not defend the law, a move “upends a longstanding legal and democratic norm that the executive branch will uphold existing laws,” according to USA Today.
The battles between states and Washington promise to rage on through Trump’s tenure. Millions undoubtedly will become casualties of this war and lose access to affordable, high quality health care. But perhaps out of the battle many states will gain the will, the experience, the wisdom, and the institutional capacity to create their own superior health care systems.
Central Banking for All
Should the general public—individuals, businesses, and institutions—be able to open a bank account at the Federal Reserve like commercial banks? A recent paper by three lawyers, Morgan Ricks, John Crawford and Lev Menand says yes. The authors point to the multiple benefits of FedAccounts:
- No fees or minimum balances.
- Noticeable interest on balances. FedAccounts would pay the same interest rate commercial banks receive on their balances. (As of the publication of their piece, the rate was 1.75 percent (versus 0.05 percent average rate on ordinary checking accounts and 0.08 percent on savings accounts).
- Immediate payments. Financial transactions can take several days to clear. FedAccount payments would clear instantly for in-network users just like interbank payments do.
- No interchange fees. The central bank would charge no interchange fees for debit cards, a boon to consumers and small businesses that can’t negotiate with card networks for special interchange rates.
- No need for insurance. Since there would be no possibility of default on balances of any size, deposit insurance would be unnecessary.
Most financial transactions now are done electronically but the authors propose enlisting the ubiquitous physical presence of the U.S. Postal Service (USPS) where Fed ATMs could be installed and trained postal clerks could handle cash deposits and withdrawals as well as check deposits for FedAccount holders. The FedAccount would not be a lending program, but the USPS could revive its successful multi-decade venture into Postal Banking that serve the credit needs of low and moderate income households.
The authors expect the FedAccount will generate significant revenue. Returns on the Fed’s asset portfolio typically exceed their interest payments and other expenses by a wide margin, over $90 billion each of the last three years. “Because FedAccount would probably greatly expand the Fed’s balance sheet,” the authors maintain, “these remittances could easily double or triple, even after accounting for the costs of maintaining millions of retail accounts.”
Large-scale migration to FedAccounts would significantly impact both large and small banks. Both would have to seek alternative funding. Short-term credit would be available from the feds discount windows. And if we choose, the authors note, we could subsidize small banks through graduated rates on discount window credit.
“Aside from banks and certain shadow banking institutions whose existing business models FedAccount would disrupt, practically every other segment of the American economy is likely to benefit,” the authors write in summarizing their argument. “FedAccount would offer a free public option in banking to all U.S. residents without increasing their taxes or compelling them to switch. It would reduce or eliminate the regressive tax on retailers and consumers implicitly created by debit card interchange fees. Because it would meaningfully augment the Fed’s annual remittance to the Treasury by reducing economic rents, FedAccount would appeal to deficit hawks. It would also appeal to institutional investors and businesses large and small because the program would greatly simplify cash management while offering higher interest payments on cash balances and faster payment speeds. Given these benefits and others, it is easy to see how FedAccount could garner widespread political support.”
Read the full story here…
Gig Workers of the World, Unite!
In 2016 delivery riders in London, galvanized by the decision of Deliveroo, a food delivery company, to switch from paying an hourly wage plus a bonus per delivery to a straight payment per delivery, went on strike. The strike spread to UberEats and then to other cities around the UK where companies were adopting a similar payment regime. That fall, riders employed by another food delivery firm, Foodora went on strike in Turin. Within a year strikes had broken out in Milan and Rome. By early 2018 they had spread to France, Spain, Germany. Belgium and the Netherlands.
The history and current developments of this gig economy movement have been covered well in Jacobin. The most recent article by Lorenzo Zamponi appeared this June.
In November 2017, the self-organized collectives Deliveroo Strike Raiders, Riders Union Bologna, and Deliverance Milano signed a common list of demands to Deliveroo.
In mid 2018 the Bologna city council negotiated a “Bill of Fundamental Rights of Digital Workers in the Urban Context” with Riders Union Bologna collective. The bill includes right to insurance, to organize, and to be paid hourly salaries in line with national collective bargaining agreements. The newly appointed labor minister of Italy’s new coalition government proposed extending the bill to the national level and as his first official meeting met with the riders’ delegation.
In mid February 2017 160 people from 40 organizations and 9 countries met in London for the Third Transnational Social Strike Platform Assembly to “discuss, organize and plan around questions on the social strike.”
Workers have won over public opinion by taking to the streets and directly engaging the public. They’ve occupied company offices and distributed leaflets in restaurants all the while wearing their company’s uniforms.
The workers ultimate goal is to be recognized as workers, not freelancers. Like other companies in the gig economy, delivery firms assert there is no employment relationship and therefore they are not legally required to provide insurance, sick leave, or any other work-related benefits nor to bargain collectively with the riders. Delivery workers maintain that the firm’s work requirements prove they are traditional employees: riders agree to weekly shifts, wait at pre-established locations for orders, earn a wage set by the company, and wear branded uniforms.
The courts have ruled both ways on the employment issue but mostly have sided with the riders. In late 2016 a British court found that Uber taxi drivers were not self-employed. “The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous,” the judges observed. Uber lost its appeal in 2017.
In April 2018 an Italian employment tribunal ruled that Deliveroo riders are not employees but in June a Spanish court ruled that Deliveroo riders are employees. This June the UK Supreme Court also unanimously ruled that a heating engineer working for Pimlico Plumbers was an employee and not self-employed. The high court also granted Deliveroo’s riders permission to challenge its opposition to collective bargaining on human rights grounds.
Meanwhile, UK food delivery companies are facing a parliamentary inquiry into the pay and conditions of its couriers. The Work and Pensions committee has already taken evidence from workers at several companies and in June 2018 began gathering evidence from Deliveroo riders.
The gig economy worker revolt is expanding. In June the UK’s GMB, a union for gig economy workers took legal action on behalf of couriers against three delivery companies used by Amazon.
Will Native American Land Stop the Keystone XL Pipeline?
For 150 years Native Americans have had millions of acres of land taken from them. Now two acres of Indigenous land may hold the key to stopping the Keystone XL pipeline.
In 2008, TransCanada proposed a 1,100-mile oil pipeline line to carry tar sand oil from Hardisty, Alberta to Steele City, Nebraska, near the Kansas border. At that point the Keystone XL pipeline would join the existing Keystone One pipeline that connected to refineries on the Gulf of Mexico.
In 2015, responding to widespread opposition, the Obama administration rejected TransCanada’s permit application.
In 2017, Donald Trump reversed that decision.
As of mid 2018 TransCanada had gained route approval in all states the line will cross despite vigorous opposition by tribes, ranchers and farmers and environmental activists. One of the key objections has been to the use by TransCanada of the governmental authority of eminent domain to secure access to land.
“A foreign oil company — exporting a form of energy that our government is still studying and the Canadian government just issued a safety violation on — gets to seize American land without proving they are a common carrier and without any requirement that Americans get a drop of the oil. There is something wrong with this picture,” Jane Kleeb, an activist with the group Bold Nebraska told a reporter from the Washington Post.
Landowners were infuriated by the contract TransCanada was all but forcing them to sign. Kendra Perre-Louis in Popular Science describes the details of a typical contract. “TransCanada would essentially pay once for the right to use the land forever. The company didn’t promise to pull up the pipes once it had stopped using them, and farmers could be on the hook if they were found somehow responsible for a leak. Someone digging a posthole on her own land could accidentally strike the pipeline—which is to be buried only three feet deep—and find herself owing a lot more than she’d ever been paid.”
State regulators and courts repeatedly ruled in favor of the company.
In June 2018, the Ponca Tribes of Nebraska and Oklahoma adopted a new approach. Farmers Art and Helen Tanderup deeded 1.6 acres of ancestral tribal land back to the Tribe. In order to seize Native American land, TransCanada will have to meet a much higher legal bar than it did when defending its right to take Nebraska farmers’ property.
The Poncas may have a strong legal case. A few years ago New Mexico’s largest electric utility claimed the right to use eminent domain to obtain a right-of-way for a transmission line that crossed Navajo lands. In May 2017 the Tenth Circuit Court, after a long discussion of the evolving law regarding tribal land rights, rejected that claim.
The Ponca Tribe may be able to make an even more compelling moral case.
The tract of land gifted to the Ponca has for the past five years been used to restore the Tribe’s sacred corn to the indigenous people’s ancestral homeland. The planting of the corn followed a 137-year absence after the tribe’s forced removal from their lands by the U.S. government along the “Trail of Tears” route that also crosses the Tanderup farm.
The Tanderups’ farm lies just north of the town of Neligh. Omaha Herald reporter Matthew Hansen’s offers a lengthy and vivid discussion of the intimate historical relationship between the town and the tribe.
(In mid May 1877) U.S. government agents forcibly ejected the Poncas from land where the tribe had hunted and foraged for centuries. The Ponca were headed on a disastrous 600-mile journey to an Oklahoma reservation where disease, mostly malaria, would kill a third of the Ponca people.
For days in May they marched, slogging through the near-constant rain and thick mud of an unseasonably cold, wet spring. On May 22, they reached the then-new town of Neligh and camped in the Elkhorn Valley. There it drizzled. Then it rained. Then it poured, all night and into May 23, sheets of water lashing the camp so hard that the Poncas and their government minders hunkered down all day.
That is the day (18 month old) White Buffalo Girl died…her mother, Moon Hawk, and father, Black Elk (a member of the Ponca tribe, not the famed Lakota holy man with the same name), asked the government agent for help.
Either Black Elk or the government agent went into Neligh and requested the aid of a local carpenter, who obliged by taking two fence posts and nailing together a wood cross.
On May 24, members of the Ponca Tribe and Neligh townspeople climbed the hill to the town cemetery, where a local minister presided, his words translated into Ponca.
Then Black Elk stepped forward and began to speak.
‘I want the whites to respect the grave of my child just as they do the graves of their own dead,” he said. “The Indians do not like to leave the graves of their ancestors, but we had to move and hope it will be for the best. I leave the grave in your care. I may never see it again. Care for it for me.
His short speech, translated into English at the graveside, so struck the residents of Neligh that the pioneers who attended the burial that day remembered it for the rest of their lives. They wrote it down. They passed it on to local historians…
No one in Neligh knows when the flowers started appearing at the grave. They know of no organized effort to decorate it. It has just always … happened, as ever-present as a spring thunderstorm, the scorching summer sun or the crisp autumn days when you sense winter’s approach.
In 1913, a local monument company replaced the wood cross with a proper stone. In 1960, volunteers poured a new foundation, so that the worn gravestone wouldn’t fall and crack.
Teachers teach students the story of White Buffalo Girl. Parents tell their children, who tell theirs…
When the flowers become too many, and the teddy bears grow old and tattered, a local Boy Scout troop cleans the gravestone. Then the process begins again, as sure as the sunrise, as certain as the seasons.
Two years ago, members of the Ponca and Omaha Tribes retraced the 600-mile Trail of Tears, the march to Oklahoma that the U.S. government forced on their Ponca ancestors after giving the tribe’s homeland to the Lakota.
They stopped in Neligh. They put up a tepee in the city park. They cooked a traditional meal of corn soup and fry bread. They invited the locals to lunch. Hundreds showed.
They had a traditional ceremony in the park. They gave gifts of a shawl and a blanket to the town elders. They set out a spirit plate for White Buffalo Girl. Together, they acknowledged her and each other… “So that’s what we did. We went and said thank you.”…
They did it because her father asked them to. They did it because it was the right thing to do.
Will the courts also do the right thing and rule in favor of the Poncas?
In 2015 two eastern rural Maine communities abutting the border with New Brunswick-Calais created the Downeast Economic Development Corporation (DEDC). Its members quickly concluded they needed low cost, high speed, reliable Internet to attract new businesses and expand existing ones. Most residents relied on slow DSL A few larger businesses had gained fiber connectivity but at a very high cost.
Lisa Gonzalez, senior researcher at ILSR’s Community Broadband Initiative, offers a detailed description of what ensued.
DEDC commissioned Pioneer Broadband, a local telecommunications company based in northern Maine to do a feasibility study. Its report, completed in October 2016, recommended an 87- mile, $2.7 million fiber network that would connect all residences and businesses in Calais, population 3,000 and Baileyville, population 1,500. The publicly owned network would lease space to Internet service providers (ISPs) to offer services.
The DEDC canvassed local providers. All except the two large incumbents expressed an interest in using the network.
In 2017, the state legislature gave the embryonic enterprise a helping hand when it amended an existing statute to allow several municipalities to form a regional broadband utility. A few months later, the Downeast Broadband Utility (DBU) was born.
DEDC sought funding from the state. Their communities were clearly underserved, but according to the state’s definition, they were not unserved and thus would have to take a back seat in funding to many other rural communities in Maine where Internet access is even worse.
The DEDC approached the US Department of Agriculture and found that there too they would be competing with other communities from around the country more likely to receive loans, and the process would take at least a year.
Having come up empty by looking outwards, the communities then turned inward.
Local banks were aware of the economic development possibilities and how it would benefit them. They were also interested in taking advantage of the new infrastructure themselves. They gave the DBU a two-year low-interest, $2.9 million line of credit from these banks. The loan will cover construction of the network and central offices. After two years, when they expect the network to be completed, they plan to renegotiate the amount due into a 20-year loan.
With financing in hand, construction could begin. But DBU faced another potentially very costly problem: pole attachments.
Regulations involving utility poles include strict requirements for where on the pole particular types of cables can be connected. As Gonzalez notes, “By dragging their feet, incumbents can delay the new project, increasing costs and damaging momentum. Big national providers such as AT&T and Comcast use the tactic as often as possible to prevent competition.”
Julie Jordan, director of the DBU explained the problem to Chris Mitchell, director of ILSR’s Community Broadband Initiative on one of his regular Community Broadband Bits podcasts (as of this writing there are a remarkable 312 of them!).
“In the past, the pole owner could say, ‘You know what? We think you need to go halfway up the pole, and there are two other lines that are there already, so you’re going to have to get the people who have those lines here to move theirs, and then we’re going to let you attach. So now you’ve got to go to another party and say, ‘All right, will you please move your line?’ And you fill out those applications and you pay those fees and then you hope they come and do that in a timely manner. I mean, right now, pole owners can take up to 179 days before they’ll say, ‘okay, go ahead, you’re good to go.’”
To alleviate this logjam the Maine Public Utilities Commission changed the rules to allow a new broadband utility to attach its cable below other lines currently on the poles or on the back of the poles. Deployment should now be quicker and make-ready costs much lower and easier to predict.
In April 2018 DBU awarded Pioneer the contract to oversee construction, which should begin later this year. As the project progresses, DBU will make the infrastructure available to ISPs. It will also issue a bid for an operator to manage the network.
Net Neutrality State Tracker
In February 2015, under the direction of President Obama’s appointee Tom Wheeler, the FCC re-classified broadband as a utility. That gave it the authority to regulate broadband Internet Service Providers (ISPs) much as it did the old telephone network. It exercised this authority to prohibit ISPs from blocking, throttling, or prioritizing certain internet content. The FCC, and the vast majority of Americans, believed these net neutrality rules necessary because many ISPs are owned by larger communications conglomerates that also create content and these likely will favor their own content and restrict access to competitors’ content.
In December 2017, Trump’s FCC repealed the rules protecting net neutrality. A resolution to overturn the FCCs decision before it went into effect passed the US Senate in May but stalled in the House.
The repeal went into effect June 11, 2018. That day the state of Washington became the first to impose its own net neutrality law, pursuant to a law enacted in March that was designed to automatically go into effect when the appeal was finalized. “We passed net neutrality with overwhelming bipartisan support, proving that it’s really not that hard for elected officials to listen to their real bosses: the people. I just wish congress would do the same,” Democratic Washington State Representative Drew Hansen, who originally introduced the bill, told Motherboard.
The Washington law applies broadly to all ISPs, prohibiting home and mobile Internet providers from blocking or throttling lawful Internet traffic and from charging online services for prioritization. The rules will be enforced by the state attorney general under Washington’s Consumer Protection Act.
Oregon also passed a net neutrality law, but it applies only to ISPs that sell Internet service to state or local government agencies, and it doesn’t take effect until January 1, 2019. Thirty states have proposed legislation reinstating net neutrality rules or requiring state contractors to abide by them. Governors in six states–Hawaii, Montana, New Jersey, New York, Rhode Island, and Vermont—have issued Executive Orders requiring companies wishing to contract with the State to confirm that they will meet the 2017 net neutrality requirements.
The Mayors of 122 cities¹ and Santa Cruz County (CA) have pledged to require entities contracting with the city or using city services to adhere to Net Neutrality rules.
A California bill, which would have become the strictest state net neutrality bill in the country, easily passed the state Senate but in June, to widespread outrage, a House committee stripped out its essential safeguards. Assemblyman Miguel Santiago, D-Los Angeles, chair of the Communications and Conveyance Committee introduced eviscerating amendments late one night and early the next morning, without allowing any testimony, called for a vote.
The National Conference of State Legislatures is tracking state actions regarding net neutrality.
When the FCC not only repealed net neutrality regulations it also banned state and local governments from imposing “more stringent requirements for any aspect of broadband service that we address in this order.”
By its decision the FCC effectively washed its hands of regulating the Internet while at the same time stripping the right of states and cities to step in and do so. The courts will decide.
Meanwhile, communities can adopt a more direct strategy. They can build their own networks and make their own rules.
As Chris Mitchell, director of ILSR’s Community Broadband Networks Initiative told CityLab, “We’ve been saying for years that cities can’t rely on the FCC to protect them. Cities need to…start making investments.” They need not provide telecommunications services. They can contract with service providers with the contractual proviso that they honor net neutrality.
Many communities have already built community-wide networks. More than 500 municipally owned or cooperatively owned networks exist. ILSR has a map that includes almost all of them. Muninetworks.org reports on the most current developments.