Net Neutrality Now California Law, Trump Admin Vows Lawsuit

by Samuel Abasi Posted on October 1st, 2018

Sacramento, California, USA : Governor Jerry Brown signed a bill on Sunday barring internet service providers from slowing customer speeds, blocking access to lawful content and offering “fast lanes” for large sites like Facebook, Google and Netflix.

The net neutrality protections proposed under Senate Bill 822 by state Sen. Scott Wiener, D-San Francisco, have drawn criticism from the telecom industry — which is likely to file lawsuits seeking to overturn the measure in the near future.

The United States Telecom Association said in a statement it supports strong net neutrality protections but thinks the matter should be left to the federal government.

“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,” the association said in a statement.

Wiener said in a statement that Brown’s signature marks “a historic day for California” and a “true win for the internet and for an open society.”

California is one of more than 25 states to consider net neutrality protections since the FCC voted late last year to reverse the Obama-era internet regulations. FCC Chairman Ajit Pai, who was appointed by President Trump, and Republicans have called for an end to the utility-like oversight of internet service providers.

The rules, enacted in February 2015 and ended in June, barred broadband and wireless companies such as AT&T Inc. and Verizon from selling faster delivery of some data, slowing speeds for certain content or favoring selected websites over others.

Since then, tech companies including Amazon and Facebook have filed briefs in support of the states’ lawsuit against the FCC to restore net neutrality.

An additional proposal by Sen. Kevin de León (D-Los Angeles) was shelved in the state Assembly. It would have denied public contracts to companies that fail to follow the new state internet rules, but it sunk amid opposition over last-minute amendments.

Soon after the passage of Wiener’s bill, he and other legislators said they worked with the state attorney general’s office to make certain SB 822 would be able to withstand legal challenges and said they were prepared to battle the telecom industry in court.

“The bottom line is this,” De León said. “The internet is vital to our democracy because it is part of our daily lives.”

Speaking at the news conference in San Francisco, Haleema Bharoocha of the Greenlining Institute, a racial justice and economic policy center in San Francisco, said the internet had given her a platform to combat sexual harassment and raise the voices of other Muslim women in the #MeToo movement.

“Net neutrality has given me a voice online when I’m not able to speak offline,” she said.

Still, telecom industry groups and lobbyists warn the new law will be challenged in federal court, a case they say could make its way to the Supreme Court.

“We all support strong and enforceable net neutrality protections for every American — regardless of where they may live. But this bill is neither the way to get there, nor will it help advance the promise and potential of California’s innovation DNA,” said Jonathan Spalter, president and chief executive of USTelecom, a Washington-based lobby group.

The Trump administration said Sunday it will sue California in an effort to block what some experts have described as the toughest net neutrality law ever enacted in the United States, setting up a high-stakes legal showdown over the future of the Internet.

California on Sunday became the largest state to adopt its own rules requiring Internet providers like AT&T, Comcast and Verizon to treat all web traffic equally. Golden State legislators took the step of writing their law after the Federal Communications Commission scrapped nationwide protections last year, citing the regulatory burdens they had caused for the telecom industry.

Mere hours after California’s proposal became law, however, senior Justice Department officials said they would take the state to court on grounds that the federal government, not state leaders, has the exclusive power to regulate net neutrality. DOJ officials stressed the FCC had been granted such authority from Congress to ensure that all 50 states don’t seek to write their own, potentially conflicting, rules governing the web. The U.S. government anticipates filing its lawsuit Monday morning.

The move by Attorney General Jeff Sessions opens another legal battlefield between the federal government and California, which the DOJ has taken to court already for trying to bypass the Trump administration’s policies around immigration and climate change.

“The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order,” Attorney General Jeff Sessions said in a statement Sunday. “We will do so with vigor. We are confident that we will prevail in this case—because the facts are on our side.”

In this case, the future of Internet regulation is at stake in a political war that’s pit telecom providers such as Verizon against tech companies, especially smaller ones such as the crafts site Etsy and the streaming service Vimeo. With other states considering net neutrality laws of their own, the DOJ “may want to try to take [California] to the Supreme Court if it goes that far,” said Carl Tobias, a law professor at the University of Richmond.

The coming legal clash may fuel partisan tensions just weeks before voters cast ballots in a deeply contested midterm election.

Emboldened by online activists, liberal organizers and tech start-ups, California lawmakers set about crafting their own net neutrality rules earlier this year. The proposal that the legislature adopted in September — which the governor’s office allowed to become law Sunday — prohibits Internet providers from blocking access to sites and services, slowing down web connections or charging companies for faster delivery of their movies, music or other content. Smaller web firms, in particular, worry that they do not have the resources to pay telecom giants to make sure their content is seen. The law also bans carriers from exempting apps from counting toward consumers’ data allowances each month if doing so might harm companies, especially start-ups.

California’s law is even tougher than the approach adopted in 2015 while President Obama was in office — which was scrapped after Republicans took over leadership of the FCC two years later. To Ajit Pai, the FCC’s current Republican chairman, such net neutrality protections proved heavy handed and had slowed the telecom industry’s investment in improving their broadband networks nationwide. “I think ultimately it’s going to mean better, faster, cheaper Internet access and more competition,” Pai said as the repeal took effect in June.

But the FCC’s efforts immediately put Washington on a collision course with the states. To start, more than 20 states filed lawsuits against the FCC, arguing that the agency had acted arbitrarily in repealing the net neutrality rules. Their efforts have won the support of companies like Mozilla and trade associations representing tech giants including Amazon, Facebook and Google, along with consumer groups like Free Press and Public Knowledge.

Many governors and legislatures also set about trying to craft policies preserving net neutrality within their borders, even though the FCC’s repeal order explicitly prohibited states from writing their own open-internet laws. That prompted the DOJ to file its lawsuit in a federal court in Sacramento, which seeks a preliminary injunction that will stop California’s net neutrality rules from taking effect on January 1.

“Not only is California’s Internet regulation law illegal, it also hurts consumers,” Pai said in a statement. “The law prohibits many free-data plans, which allow consumers to stream video, music, and the like exempt from any data limits. They have proven enormously popular in the marketplace, especially among lower-income Americans. But notwithstanding the consumer benefits, this state law bans them.”

Originally passed in 2015 and upheld by the U.S. Court of Appeals for the D.C. Circuit in 2016, the FCC’s previous net neutrality rules required that internet service providers like AT&T, Comcast and Verizon treat all web traffic equally. This meant that, for example, providers would not be allowed to “throttle” or change the speed with which a person accesses a website. The repeal allows ISPs to block or slow some online traffic. In other cases, the provider can negotiate with a website for “fast lanes” to users.

When the FCC repealed the rules, the agency went further than just repeal by saying it did not have the legal authority used in 2015 to regulate internet providers. That issue is bound to be at the center of whether or not the federal government can preempt the states in this instance.

In September, FCC Chairman Ajit Pai made remarks in Maine, which is considering similar legislation, about the dangers of the California law.

“Last month, the California state legislature passed a radical, anti-consumer internet regulation bill that would impose restrictions even more burdensome than those adopted by the FCC in 2015,” he said. “The Internet should be run by engineers, entrepreneurs, and technologists, not lawyers, bureaucrats, and politicians.”

He went on to argue that ending net neutrality has been better for consumers, a comment that some derided as antithetical to reality.

In response to the recent DOJ action, California Attorney General Xavier Becerra, who is already suing the administration with 22 state attorneys general over the original roll back of net neutrality, blasted the decision.

“While the Trump Administration continues to ignore the millions of Americans who voiced strong support for net neutrality rules, California—home to countless start-ups, tech giants and nearly 40 million consumers—will not allow a handful of power brokers to dictate sources for information or the speed at which websites load,” he said. “We remain deeply committed to protecting freedom of expression, innovation and fairness.”

California is not alone. In January, Montana Governor Steve Bullock signed an executive order requiring internet service providers with state contracts to follow net neutrality principles. Governors in Hawaii, New Jersey, New York, Rhode Island and Vermont followed suit. Oregon, Vermont and Washington state enacted net neutrality legislation this year, according to the National Conference of State Legislatures.

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Samuel Abasi

Samuel Abasi

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