Published on October 2nd, 2018 | by Alan Cross2
California signs strong net neutrality rule; government immediately sues
The latest chapter in the United States’ fight over net neutrality is focused on California.
Late Sunday, Gov. Jerry Brown signed the country’s toughest law protecting Obama-era net neutrality. The law safeguards access to a level playing field for customers while prohibiting providers from offering “fast lanes” for content on select websites.
“This is a historic day for California,” said Democratic Senator Scott Weiner, who wrote the law, after the bill was signed. “A free and open internet is a cornerstone of 21st century life: Our democracy, our economy, our health care and public safety systems and day-to-day activities.”
And within minutes of Brown’s pen coming off the page after signing the law, there was a call from the federal Department of Justice. The state is being sued to prevent the law from taking place.
This stare-down has been a long time in coming.
When the U.S. Federal Communications Commission voted earlier this year to repeal Obama-era net neutrality regulations, California was one of more than 20 states that vowed to take actions to protect those laws. California is the second state, following Washington, to take official action, implementing on Sunday a law that “bans broadband providers from exempting their own content from data caps while charging for data used by competitors,” Wired reports. “That will affect AT&T’s practice of exempting its DirecTV streaming video service from its mobile customers’ data limits but not data used by Dish’s Sling TV service, and other similar arrangements. The old FCC rules, by contrast, allowed the commission to investigate such deals on a case-by-case basis.”
The National Conference of State Legislatures find that there are legislators in 30 states working on more than 72 bills, all centered on protecting net neutrality as established in 2015. Leaders in six states have signed executive orders establishing criteria for ISPs to abide by in order to do business in their states, The Verge reports.
Washington State’s law is less all-encompassing than California’s because it does not address data caps and includes several loopholes that experts say could allow broadband providers to charge fees for unrestricted service, a practice known as throttling.
Of course, there’s serious pushback from the Trump government, which has been supportive of FCC Commissioner Ajit Pai and his rollback of net neutrality protections since before the 2016 presidential election.
“Under the Constitution, states do not regulate interstate commerce — the federal government does,” said Attorney General Jeff Sessions.
Pai chimed in as well, saying California’s law is illegal and “hurts consumers.”
Oddly, it seems Obama-era net neutrality protections are one of the few political issues in the United States with bipartisan support. A University of Maryland study conducted last December, as the FCC took action to stop protecting net neutrality as a commodity or utility and start letting internet service providers take the reins and traffic lights, found that a vast majority of Americans — 83%!– support net neutrality. That includes 75% of Republicans, 89% of Democrats and 86% of independents.
Telecom companies are in a bit of a spot. On the one hand, most have come forward as being in support of Obama-era net neutrality regulations, but as goes California and Washington State, so too could other states, creating a patchwork of laws from across the country without any consistency.
“Rather than 50 states stepping in with their own conflicting open internet solutions, we need Congress to step up with a national framework for the whole internet ecosystem and resolve this issue once and for all,” Jonathan Spalter, president of USTelecom, told CNN.
At least one attorney has determined California isn’t breaking any federal laws and is within its right to pass its own regulations and that, in undoing net neutrality, the FCC might have screwed itself over.
“An agency that has no power to regulate has no power to preempt the states, according to case law,” said Barbara van Schewick, a Stanford Law School professor. “When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers. That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protections.”
There’s one other thing to consider: California has huge economic power in the U.S. and internationally. It’s also been in opposition with plenty of the policies put in place by the Trump administration since it began.
“Any attack on California will surely be welcomed by many on the right, who always find reason to take issue with the liberal state’s militantly progressive stances, whether on clean energy (Governor Brown recently signed a renewable energy bill that is seen as a rebuke of Trump) or immigration (the state maintains a sanctuary law that shields undocumented immigrants),” writes Maya Kosoff for Vanity Fair. “The party of states rights, after all, has always drawn the line at positions it opposes.”
The Electronic Frontier Foundation praises the law, calling it the nation’s strongest.
“California’s decision to fight this battle in the legislature also sets it apart from other states that have enshrined limited protections through a governor’s executive order, which can only dictate ISP’s conduct in state contracts. Laws are also harder to reverse than executive orders, ensuring that these important consumer protections cannot be reversed in the future with a flick of a pen,” EFF says.