California's Tough New Net Neutrality Law Takes Another Step Forward

from the you-made-this dept

In the wake of the Trump FCC's attack on net neutrality last December (which formally takes effect on June 11), more than half the states in the country are now exploring their own net neutrality rules. Some states (like Oregon and Washington) have passed state laws, while others (like New York and Montana) have embraced new executive orders that limit ISP ability to strike state contracts if they violate net neutrality. All told, it's not exactly the outcome AT&T, Verizon, and Comcast lobbyists were hoping for, and it's a pretty solid indication they really didn't think this entire thing through particularly well.

But at the moment, most eyes rest on California, where one of the tougher new state-level replacement laws just took a major step forward.

Senator Scott Wiener’s SB 822 would prevent ISPs in California from engaging in blocking, throttling, or paid prioritization. The EFF has called the bill the "gold standard" for state-level net neutrality law. The proposal actually goes a bit further than the FCC rules it's intended to replace, in part because it more tightly polices things like zero rating and usage caps, which have long been used anti-competitively by incumbent ISPs as a way to make life more difficult for companies trying to elbow in on traditional TV revenues.

Despite a major push by industry lobbyists, SB 822 last week was approved 23-12 by the California Senate and will now head to the state Assembly (sometime before the end of this month). If it passes there, it will be on to the desk of Governor Jerry Brown for signing.

California's law will be one to watch. Comcast, AT&T and Verizon successfully lobbied the Trump FCC to include language in their net neutrality repeal attempting to ban states from protecting broadband consumers, language companies like Charter are already using to try and tap dance out of lawsuits for substandard service. But the FCC's authority here is shaky, and some legal experts (like Stanford Professor Barbara van Schewick) have argued that when the FCC rolled back its Title II authority over ISPs, it also dismantled its right to tell these states what to do:

"The bill is on firm legal ground.

While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

ISPs have promised to "aggressively sue" any states that try to pass rules protecting net neutrality or broadband consumer privacy. And while this will only disgust the majority of Americans even more, the combination of limited competition and rubber stamp regulators like Ajit Pai means there's not much in the way of punishment for the tech policy equivalent of giving a giant middle finger to the nation's consumers, small businesses, and healthy competition.

Filed Under: california, fcc, net neutrality, scott wiener

California Introduces New, Tougher Net Neutrality Rules; Uses Ajit Pai's Abdication Of Authority Against The FCC

from the reap-what-you-sow dept

Earlier this year, California introduced new net neutrality legislation as part of similar efforts across more than half the states in the nation. At the time, we noted how the EFF wasn't a particular fan of California's proposal, arguing that the wording of the effort left the law open to challenges by the FCC, which has (at AT&T and Comcast behest) promised to block states that actually try to protect consumers in the wake of its unpopular net neutrality repeal. But a new California proposal has no such Achilles heel, goes notably further than the first effort, and now has the EFF's full support.

California state senator Scott Wiener this week introduced SB 822, a much tougher, more comprehensive proposal that would prohibit not only the blocking and throttling of websites and services by ISPs, but would ban "paid prioritization" deals that would allow deep-pocketed content companies (like, say, ESPN) from buying an unfair advantage against smaller competitors and startups. The bill also takes aim at the kind of interconnection shenanigans and double dipping that resulted in Netflix performance issues back in 2014, while leaving the door open to reasonable network management practices.

In some ways the proposal goes a bit further than the FCC's 2015 net neutrality rules, in that it more concretely addresses the problem of "zero rating" ( when ISPs let a partner's content or their own bypass usage caps while still penalizing others). Zero rating in general is allowed, but only if entire classes of content are whitelisted. Individual efforts to whitelist only specific partners (as we saw with T-Moble's controversial "Binge On" efforts), would be forbidden, as would pay to play approaches where content companies are allowed to buy a zero rating advantage over a competitor:

"Wiener’s bill digs into more arcane matters that the Obama-era FCC’s now-abolished 2015 policy included. It tackles the “zero-rating” programs, such as T-Mobile’s Binge On, which exempt some sites, apps, and services from monthly data caps. Obama’s FCC allowed Binge On, since T-Mobile continued welcoming new video services. California’s law seems to require blanket access for all similar apps without a wait for the ISP to add them. “It can be allowed if it is about a certain class [of content], like you could have when you’re doing games,” says Wiener about zero-rating. “If they say we’re going to apply it to a category, not any one product, and all comers, then it’s not automatically illegal."

The bill is also more resilient to any efforts by the Trump and Ajit Pai FCC to hinder state efforts to protect consumers. Whereas many states are just regurgitating the FCC's 2015 rules in their own proposals, that alone isn't enough to protect them from potential FCC preemption, argues Barbara van Schewick, Professor of Law at Stanford Law School, and the Director of Stanford Law School’s Center for Internet and Society. She also argues that the FCC shot its state preemption efforts in the foot by rolling back the classification of ISPs as common carriers under Title II of the Telecommunications Act:

"The bill is on firm legal ground.

While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

More simply, the FCC shot itself in the foot, and when it neutered its own authority over ISPs at Comcast, AT&T and Verizon's behest, it managed to also neuter its authority to pre-empt states from filling the void. Of course this could all be moot if the FCC loses its battle in court, but it's amusing all the same, and it's another example of how Ajit Pai and friends didn't really think this whole thing through.

While ISPs have whined incessantly about the headaches of having to adhere to multiple discordant net neutrality rules, that's not quite as big of a problem as they claim (especially since they already adhere to numerous rules governing phone, broadband and TV, which can vary town to town). Most of these new state laws follow the same effective template, and Wiener's office says it will work with numerous states to help them mirror California's efforts. All told, if consistency and stability were really the goal of AT&T, Verizon and Comcast lobbyists, they should have left the popular federal protections alone.

Filed Under: ajit pai, california, fcc, net neutrality, pre-emption, scott wiener, states rights