By: Brandon Schall, Staff Writer
On February 26, 2015, the Federal Communications Commission (FCC) adopted the Protecting and Promoting the Open Internet rules, known as Net Neutrality.[1] The FCC approved the rules with a 3-2 vote, along party lines.[2] The FCC ultimately adopted the rules and released the order on March 12, 2015, and many groups vowed to challenge the rules in court.[3] Although the rules were challenged, the D.C. Circuit Court allowed the internet to be treated like a utility.[4]
On December 14, 2017, the FCC, on a 3-2 vote, repealed the rules categorizing the internet under Title II, by adopting the Restoring Internet Freedom Order, repealing net neutrality.[5] The order reversed the Title II framework, which Chairman Pai has suggested will spur investment, innovation, and competition and increase transparency to protect consumers.[6] The news release specifically stated that the FCC “today voted to restore the longstanding, bipartisan light-touch regulatory framework that has fostered rapid internet growth, openness, and freedom for nearly 20 years.”[7] The order was released to the public on January 4, 2018, and became effective on April 23, 2018.[8] Since then, twenty-two states have challenged the legality of the rules in court and many states have vowed to install new rules to protect consumers.[9]
On September 30, 2018, Governor Jerry Brown (D-CA), signed SB 822, restoring in California net neutrality rules that were repealed by the FCC.[10] The FCC’s Restoring Internet Freedom Order contained a preemption provision that bans states from adopting their own net neutrality laws.[11] Despite the preemption provision, Governor Brown signed the bill.[12] Subsequently, the Department of Justice announced that they would challenge the law in court.[13] After the announcement, Attorney General Jeff Sessions said, “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.”[14] Separately, FCC Chairman Pai stated, he looked “forward to working with my colleagues and the Department of Justice to ensure the Internet remains ‘unfettered by Federal or State regulation,’ as federal law requires, and the domain of engineers, entrepreneurs, and technologists, not lawyers and bureaucrats.”[15]
Governor Brown’s actions also drew the attention of internet, cable, and wireless providers, who also sued California over the law.[16] Specifically, USTelecom, the American Cable Association, the wireless group CTIA, and NCTA (The Internet & Television Association) all argue that the new rules could actually hurt consumers.[17] “We oppose California’s action to regulate internet access because it threatens to negatively affect services for millions of consumers and harm new investment and economic growth,” the four groups said in a joint statement.[18] Additionally, they said, “Republican and Democratic administrations, time and again, have embraced the notion that actions like this are preempted by federal law. We believe the courts will continue to uphold that fundamental principle.”[19] However, California Attorney General Xavier Becerra said, “California has the right to exercise its sovereign powers under the Constitution. We’re prepared to demonstrate that when it comes to protecting forty-million consumers and their right to access information.”[20]
California’s net neutrality bill would mirror the 2015 Open Internet Order’s prohibition on blocking, throttling, and paid prioritization.[21] Additionally, it would restrict unreasonable interfering with or disadvantaging the ability of consumers and internet content providers to reach one another.[22] Furthermore, the California bill provides more restrictions on zero-rating and interconnection, and would regulate video or voice services that broadband providers offer over the same networks.[23]
California’s primary defense is centered around the argument that the FCC order’s preemption provision is invalid.[24] The DOJ notes that the Hobbs Act prohibits California from making this argument in this proceeding because the act vests exclusive jurisdiction in the circuit courts of appeal.[25] On this defense, California is likely to fail.[26] The preemption provision will likely be answered by the D.C. Circuit Court in the appeal of the Restoring Internet Freedom Order that was previously challenged in a separate lawsuit.[27] However, some proponents of SB 822 have declared that by repealing the net neutrality rules, the FCC has disclaimed any authority to regulate broadband networks and therefore, leave California and other states free to pass legislation to regulate the internet.[28]
If California’s net neutrality law survives judicial challenge, there are a number of other states that would likely pass similar bills. Specifically, Oregon, Vermont, and Washington have already passed laws on regulating the internet.[29] Regardless, thirty other states are looking to pass similar laws that could have a devasting impact on private companies.[30] One solution would be for Congress to pass federal legislation to provide one standard and providing the FCC with rulemaking authority for the internet. Congress has the ability to accomplish this during the lame-duck session.
Note:
After this article was written, California announced, it would not enforce its own state net neutrality law until a final court decision on the Restoring Internet Freedom Order.[31] A federal appeals court set oral arguments for February 1, 2019, leaving California’s net neutrality law in limbo for at least several months.[32]
Sources:
[1]FCC Protecting and Promoting the Open Internet, GN No. 14-28 (2015), available athttps://apps.fcc.gov/edocs_public/attachmatch/FCC-15-24A1.pdf.
[2]Id.
[3]Id.
[4]Cecilia Kang, Court Backs Rules Treating Internet as Utility, Not Luxury, NY Times (June 14, 2016). https://www.nytimes.com/2016/06/15/technology/net-neutrality-fcc-appeals-court-ruling.html
[5]Seth Fiegerman, Trump’s FCC votes to repeal net neutrality, CNN (Dec. 14, 2017, 5:00 PM ET). http://money.cnn.com/2017/12/14/technology/fcc-net-neutrality-vote/index.html.
[6]FCC Releases Restoring Internet Freedom Order, FCC, https://www.fcc.gov/document/fcc-releases-restoring-internet-freedom-order(last visited Mar. 15, 2018).
[7]Id.
[8]Id.
[9]Brian Heater, Lawsuit filed by 22 state attorneys general seeks to block net neutrality repeal, Techcrunch, https://techcrunch.com/2018/01/16/lawsuit-filed-by-22-state-attorneys-general-seeks-to-block-net-neutrality-repeal/
[10]Barbara van Schewick, Gov. Jerry Brown Signs SB 822, Restoring Net Neutrality to California, (September 30, 2018 at 12:10pm). https://cyberlaw.stanford.edu/blog/2018/09/gov-jerry-brown-signs-sb-822-restoring-net-neutrality-california
[11]Id.
[12]Id.
[13]Harper Neidig, Trump DOJ picks new fight over net neutrality, (Oct. 3, 2018 at 6:00am). https://thehill.com/policy/technology/409579-trump-doj-picks-new-fight-over-net-neutrality
[14]Cristiano Lima, Trump administration sues California over net neutrality law, (Sep. 30, 2018 at 9:55pm). https://www.politico.com/story/2018/09/30/doj-sues-california-net-neutrality-854298
[15]Id.
[16]Harper Neidig, Internet providers sue California over net neutrality law, (Oct. 3, 2018 at 1:19pm). https://thehill.com/policy/technology/409698-internet-providers-sue-california-over-net-neutrality-law
[17]Id.
[18]Id.
[19]Id.
[20]Id.
[21]Daniel Lyons, California’s net neutrality law: Will it survive judicial review?, AEI, (Oct. 5, 2018 at 6:00am). https://www.aei.org/publication/californias-net-neutrality-law-will-it-survive-judicial-review/?mkt_tok=eyJpIjoiWXpSaFl6ZGpNVE15WkRsaiIsInQiOiJSVjFETHRkak9UcDl1VkVkcnZBSXQrblRCRFl1OWlDdHdjTXE1dmpXQlNsbjN2Zkp0Q0hScHdJdEUwMzFXV3FPbGU0QklEejRwMEFNTHBsTHFrQk5jUnphTW5hb0JCcGFoWWMzR1hzZGp3V3RTZVlOOG9QbnZHMWhMMldXanEyRCJ9
[22]Id.
[23]Id.
[24]Id.
[25]Id.
[26]Id.
[27]Id.
[28]Id.
[29]Dina Kesbeh, Justice Department Sues California Over Net Neutrality Law, (Oct. 1, 2018 at 4:31am). https://www.npr.org/2018/10/01/653216821/u-s-justice-department-sues-california-over-net-neutrality-law
[30]Id.
[31]David Shepardson, California will not enforce state net neutrality law pending appeal, (Oct. 26, 2018 at 2:33pm). https://www.reuters.com/article/us-usa-internet/california-will-not-enforce-state-net-neutrality-law-pending-appeal-idUSKCN1N02KU
[32]Id.
