21 Association of Research Libraries Research Library Issues 293 2018 enforceable under the Consumer Protection Act, which arguably takes it out of a regulatory action and into a consumer protection field, an attempt to circumvent the FCC’s preemption. Additionally, some legal scholars have argued that in the FCC’s repeal of net neutrality rules, the agency claimed that Congress actually withheld authority over broadband from the FCC. From that assertion, it follows that if the FCC does not have the power to regulate broadband, it also does not have the power to preempt state authority over broadband.6 In total, more than half of the US states have legislation pending to protect net neutrality, either to codify requirements for state procurement contracts or to legislate direct net neutrality protections. These states include: Alaska, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, Washington, and Wisconsin. Municipal Broadband In addition to state laws, some net neutrality proponents have advocated for local municipalities to develop their own broadband networks that would not be subject to the same tactics as private ISP companies looking to maximize their own profits or those of their affiliated networks. The creation of alternative networks are not subject to FCC preemption or scrutiny because municipalities would simply be providing residents a different network. In turn, the creation of public municipal broadband networks may create sufficient competition with private ISP networks that, at least in those municipalities, ISPs would not be able to engage in blocking, throttling, or paid prioritization. Unfortunately, this strategy will not work for all municipalities, either because of costs or state laws. According to an American Civil Liberties Union report, 22 states prohibit local municipalities from building public networks.7
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