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California’s Legislature Seeks to Protect Network Neutrality and Promote ISP Competition

DEEPLINKS BLOG
April 3, 2018

California’s Legislature Seeks to Protect Network Neutrality and Promote ISP Competition

In response to the rollback of federal network neutrality protections, this year more than 20 states have taken up the mantle of protector of a free and open Internet. Washington has already passed a law and Oregon’s waits to be enacted. Not to be outdone, California has three bills pending that, if all passed, would create the most comprehensive net neutrality defense of any state while promoting community broadband.

Those bills, S.B. 420, S.B. 822, and A.B. 1999, will face hearings and votes this month and hopefully make it to the governor’s desk towards the end of the year. If Governor Brown signs all three, California’s would not only restore the ban on blocking, throttling, and paid prioritization the FCC recently repealed, but also secures more protections and options for Californians while making it easier for local governments to engage in community broadband projects to give their residents choice and competition in the ISP market.

Senator Scott Wiener’s Network Neutrality Bill (S.B. 822)

Moments after the FCC voted 3-2 to absolve itself of any responsibility to oversee the highly concentrated and uncompetitive ISP marketplace, California State Sen.

Scott Wiener took to Twitter to announce his intention to introduce a state-based network neutrality bill. That bill, found here, is now heading towards a series of hearings and votes in the month of April and is seen as a one gold standard of state-based network neutrality law.

The legislation deploys a variety of novel approaches of state power in favor of promoting a free and open Internet and picks up where the FCC left off on addressing self-dealing zero-rating practices of ISPs. It is worth remembering that one of the first acts by FCC Chairman Ajit Pai was to drop all investigations into those practices of AT&T and Verizon, which appeared to be in violation of the 2015 Open Internet Order and then immediately proceed to repeal network neutrality.

EFF supports the legislation and will work hard to ensure California adopts the most comprehensive approach possible to protect network neutrality to serve as a model for other states.

Assemblymember Ed Chau’s Community Broadband Bill (A.B. 1999)

More than half of all Americans have one choice for high-speed broadband access and California is no different. While many people were excited about the competitive entry of Google Fiber and Verizon FiOS into the high-speed market their ultimate deployment was limited. It is also now public knowledge that as of 2016 Google will no longer expand its fiber product and, as far back as 2010, Verizon announced it no longer planned to expand its fiber build. These decisions have left citizens across the country with little to no prospects for more than a monopoly choice when it comes to high-speed broadband.

With no choice, consumers can’t pick an ISP that does adhere to net neutrality principles over one that doesn’t. Without a need to compete by providing better terms and no law or regulation requiring that behavior, ISPs have no incentive to protect privacy or net neutrality.

Assemblymember Chau wants to change that with his bill, A.B. 1999, by making it more attractive for local government to engage in the construction of network-neutral community broadband projects by allowing local communities to keep what they build. A funny quirk in California state law requires that any city that builds a competitive alternative to the existing local ISPs has to sell or lease access to those ISPs if they want it. That forced sale or leasing provision can stall community interests in building their own broadband service and essentially shifts risks to the public sector to the benefit of private actors who neglected the market in the first place.

A.B. 1999 changes this provision to make it so local governments can offer space on any broadband network they build to privately-owned ISPs if they wish, but they are no longer required to sell or lease it. If this bill is made into law, then ultimately a local community’s decision to take matters into their own hands to get 21st-century access will remain in their hands so long as they decide to keep it.

Senator Kevin de Leon’s Network Neutrality Bill (S.B. 460)

Earlier this year former California State Senate Leader Kevin de Leon moved his own network neutrality legislation out of the Senate to the Assembly. Like Washington’s law, his legislation directly regulates ISPs by essentially making the 2015 Open Internet Order into state law. It also follows the state contracting approach lead by Governor Steve Bullock of Montana, requiring any ISP with a state contract to adhere to those same rules.

While EFF is skeptical of the legal prospects of states directly mandating network neutrality without a foundation in traditional uses of state power over the ISP industry, other prominent legal scholars in the telecommunications field believe states can do it in the absence of federal law. Regardless, as the California legislature begins to complete the first half of its session for 2018, it is imperative that the state play every card in its hand to promote network neutrality in preparation for the litigation to follow.

Taken together, California’s three proposed bills reinstate previous net neutrality protections, add new ones, and help create more ISP choice. All three passing would establish California as a true leader in this issue, not simply reacting to the FCC, but as looking to the future of a free and open Internet.

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