20 Association of Research Libraries Research Library Issues 293 2018 education and library associations, have strongly opposed. Paid prioritization, by definition, prioritizes voices of those who are willing and able to pay higher fees, disadvantaging not-for-profit speech, a range of diverse opinions, and potentially hindering new innovations. One additional risk of legislative action is that a law regulating net neutrality principles would likely result in preemption, meaning that states willing to go farther than the US Congress is could be prohibited from enacting their own state-level net neutrality rules. State Action Even though the FCC’s rollback of enforceable net neutrality rules contains explicit state preemption provisions designed to prevent states from enacting their own regulations, a number of states have taken executive or legislative action to blunt or thwart the FCC’s rules. Montana became the first state to issue an executive order to diminish the effect of the FCC’s rules within its state. The executive order requires that for an ISP to receive a contract with the state of Montana, the ISP must abide by net neutrality principles and cannot block lawful content, throttle or degrade transmissions, or engage in paid prioritization. Because the executive order deals with a procurement agreement rather than a regulation, preemption would not apply. Under the executive order, the state of Montana is simply issuing contract terms that ISPs must agree to. Hawaii, New Jersey, New York, and Vermont followed suit with their own executive orders requiring ISPs with state contracts to abide by net neutrality principles. Washington and Oregon have passed laws requiring ISPs within the state to offer net neutrality protections and a number of other state legislatures are considering similar laws. These laws are likely to be challenged by ISPs on the grounds that the FCC’s preemption provisions take precedent and that states may not act in this space. However, Washington was careful in enacting its law to make it
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