Over the weekend, Gov. Jerry Brown signed S.B. 822, which guarantees strong net neutrality protections for citizens of California. Within hours, however, the federal government announced its intention to sue California for stepping in where the feds have abdicated responsibility. What happens next is going to be full of procedural issues and technicalities.
First, some background. Millions of Americans opposed the Federal Communications Commission’s (FCC) decision to abandon its authority to enforce net neutrality, competition, and privacy under its Restoring Internet Freedom Order. An expected response to a widely condemned federal act is for the states to take action themselves. And they did.
To date, 30 state legislatures have introduced bills that would require their Internet Service Providers (ISPs) to maintain net neutrality as a matter of law. Four of those states (Washington, Oregon, Vermont, and now California) have passed laws with strong bipartisan majorities, and more are promising to follow suit in 2019. Six state governors (Montana, New York, New Jersey, Hawaii, Vermont, and Rhode Island), led by Gov. Steve Bullock of Montana, have issued Executive Orders declaring that the state’s government will not do business with ISPs that violate net neutrality.
California’s law represents a tremendous victory, by real people, over a few giant corporations. ISPs such as AT&T, Comcast, and Verizon poured millions into the fight in Sacramento, and, for a moment, it even looked like the bill had been eviscerated. But Californians who believe in a free and open Internet spoke out and strong net neutrality protections were restored. And they kept speaking out, getting the bill passed in the State Senate, the State Assembly, and, finally, getting it signed by the governor.
Now the FCC and Department of Justice (DoJ) have stepped in to quell the rebellion. Just hours after California’s Governor Brown signed into law S.B. 822, the DoJ and FCC filed their lawsuit to block its implementation.
Can States Protect Net Neutrality? The D.C. Circuit May Decide
If you read the fine print of the DoJ and FCC arguments, the thrust against California is not whether states can pass net neutrality laws but rather whether a pending lawsuit in the D.C. Circuit (to which the California Attorney General is a party), which challenges the FCC’s 2017 repeal of net neutrality protections, should be given priority in deciding state power. Their motion for a preliminary injunction—a legal hold on S.B. 822—explicitly states that the “legal validity cannot be adjudicated in this Court.” In other words, this lawsuit cannot decide the legality of California’s law, at least until the case in the D.C. Circuit is decided. If that argument prevails, it simply means that California’s law is temporarily paused until the D.C. Circuit issues its opinion.
The Department of Justice Drinks the FCC’s Kool-aid
The more substantive argument is this: Based on the same factually wrong history of ISP regulation that the FCC along with cable and telephone lobbyists like to cite, the DoJ insists that the FCC has authority to abandon its oversight role but simultaneously prevent states from filling that vacuum. EFF and other legal experts disagree. For one thing, the power to preempt is related to the power to regulate in the absence of an express statement by Congress. The federal Communications Act says very little about preemption and a whole lot about states’ rights. By abandoning its authority over Internet service providers, the FCC also abandoned any power to preempt state laws.
We look forward to explaining as much to a judge, now that the fight in California has moved from the court of public opinion to an actual court. We are actively participating in the D.C. Circuit case as well where we assert that the FCC's understanding of broadband companies is so factually flawed and its failure to consider the implications for online speech and innovation is so absent that the agency must be reversed. Unless the House of Representatives joins the Senate to overturn the FCC this year, the outcome of these cases will likely determine the fate of net neutrality protections, competition policy, and privacy protections for the ISP industry.