California's Net Neutrality Law Takes Another Step Forward

from the welcome-to-the-backlash dept

In the wake of the FCC's repeal of federal net neutrality rules, countless states have rushed to create their own protections. Numerous states from Rhode Island to Washington State are considering new net neutrality legislation, while other states (like Wyoming and New York) are modifying state procurement policies to block net neutrality violating ISPs from securing state contracts. These states are proceeding with these efforts despite an FCC attempt to "pre-empt" (read: ban) states from stepping in and protecting consumers, something directly lobbied for by both Verizon and Comcast.

One of two California net neutrality laws, SB-460, passed 21-12 by the state Senate, and will now head to the state Assembly:

"Both bills are meant to give California officials rules to force Internet service companies to adhere to the principles of net neutrality to continue doing business within the state. Those principles broadly guarantee the makers of websites and apps equal access to Internet consumers without excess charges or special fees for faster service. The FCC threw out national net neutrality rules enacted in 2015 by the Obama administration, saying they were unnecessary."

Like other state efforts, the California bill mirrors the discarded FCC rules by prohibiting ISPs from engaging in paid prioritization and other anti-competitive behaviors while crafting sizable loopholes for the prioritization of medical services and "reasonable network management" practices. ISPs who violate these restrictions would be subject to financial punishment under California's existing consumer protection laws. The California law is a specific challenge to the FCC's attempt to hamstring state efforts to protect consumers, and should result in some interesting legal fireworks this year.

Ernesto Falcon at the EFF argues in a blog post that California's legislation is open to ISP legal assault, and the state ignored many of the EFF's recommended improvements that would shielf the proposed law from the FCC's pre-emption efforts. The EFF also notes that what the California law attempts to accomplish could be accomplished by executive order anyway:

"If SB 460’s approach to directly regulating ISPs is found to be invalid, ultimately all the legislation does is require state agencies to contract with ISPs that follow the 2015 Open Internet Order. While an important provision, it can already be required with a stroke of the pen tomorrow under a Governor’s Executive Order much in the same way as Montana and New York. And while the 2015 Open Internet Order was a good start, why not bring to bear all the resources a state has to secure such an important principle for Californians?"

Those court battles will join the numerous other lawsuits that have been filed against the FCC by consumer advocacy groups and companies like Mozilla, who argue the FCC ignored objective data and the will of the public in the rush to repeal the rules. California is also participating in a lawsuit against the FCC by 21 state Attorneys General, several of which are also investigating how the FCC turned a blind eye to comment fraud during the net neutrality open comment period by "somebody" trying to downplay massive public opposition to the effort.

As these state efforts accelerate, ISPs have begun to whine that it's unfair for them to have to adjust to numerous, discordant, state-level protection efforts, something they probably should have thought about before repealing arguably modest and very popular federal protections.

Filed Under: broadband, california, competition, fcc, net neutrality, states rights