California Takes Lead in Defending Net Neutrality with Newly Enacted Law Defying FCC

Posted on October 2, 2018

Earlier this week, California formally adopted the nation’s most robust protection of net neutrality principles with Governor Jerry Brown’s signing into law of SB-822, according to a new article from Ars Technica.

The new California law preserves net neutrality by banning a number of preferential traffic routing practices (in technical parlance, “discrimination” of traffic) employed by internet service providers. Namely, the legislation prohibits ISPs from throttling or blocking legal online content, levying fees on sites or services for access to premium tiers of traffic speed, and “zero-rating” preferred affiliate traffic by exempting it from data usage limits.

This new, comprehensive set of measures marks the latest and most committed defense of net neutrality. With its enaction, the California regulations join a multi-state lawsuit against the FCC’s December repeal of the prior 2015 net neutrality rules, and the unilateral executive action of governors in a handful of states making ISPs ineligible for government contracts if they failed to extend net neutrality to all their customers (as CCDBR covered in previous pieces), in opposing FCC’s dismantlement of net neutrality. As the interstate suit will likely languish in the courts before a definitive ruling is handed down, and the gubernatorial executive action only disincentivizes ISPs from breaching net neutrality principles rather than outright precluding such behavior, California’s statutory recourse represents citizens’ best hope of retaining their freedom on the internet, and sets an admirable standard for similarly progressive states to follow.

Even before it was signed into law, FCC Chairman Ajit Pai declared the California bill illegal, and the Justice Department announced late on Sunday that is filing suit against California on behalf of the federal government. According to a statement by Attorney General Jeff Sessions, the suit rests on the assertion that the Constitution’s interstate commerce language confers on the federal government the exclusive right to regulate the internet, depriving states of any right to supersede federal government policy.

However, net neutrality defenders question the validity of such a case. The FCC predicated its reversal of its Obama-era internet regulatory regime on the notion that internet rulemaking is not the proper purview of the FCC but, rather, of the FTC. Net neutrality advocates argue that, because the FCC relinquished its authority over the internet, it correspondingly relinquished its ability to deny states regulatory power. 

While Illinois joined the multi-state lawsuit against the FCC in February, the state legislature has not pursued any net neutrality legislation comparable to California’s to date, nor has Governor Bruce Rauner imposed executive orders similar to those of his counterparts in Hawaii, Montana, New Jersey, New York, and Vermont. This relative deficit of concrete action on the issue illustrates quite clearly that there remains much that Illinois can yet do to keep abreast of its fellow progressive states in regard to net neutrality. In fact, the editorial board of one of Chicago’s more prominent journalistic voices, the Chicago Sun-Times, went as far as to explicitly underscore the importance of net neutrality, and to draw attention to embattled state legislative efforts to shore up its protections to even a modest degree. The success of such a legislative solution, particularly in light of the distinct possibility of a new governor taking office in Springfield, remain an open question, and as such net neutrality activists are likely poised to push the issue in the new legislative term. 

You can read the full report from Ars Technica here.