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.
A showdown for the internet’s future
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.”
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.
Cue the lawsuit
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.
Who will win?
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.”