A Blog by Jonathan Low


Oct 4, 2018

The US Government and California Go To Court - At Least - Over Net Neutrality

On top of all the technological implications, this could be an important Constitutional test. JL

April Glaser reports in Slate:

Following the example of Vermont, Oregon, and Washington, Gov. Jerry Brown signed a bill that enshrines the strongest protections against abuses by internet providers in the country. The new California law goes further than Obama-era net neutrality rules. The California bill goes after “zero rating,” which is when an internet provider privileges some websites and apps over others by not counting their usage against monthly data caps. Zero rating allows internet providers to pick winners and losers online.
Ever since the current Federal Communications Commission repealed the Obama-era rules protecting net neutrality, some states have passed laws to protect residents from internet providers that want to slow down, speed up, block, or otherwise control how they access websites and use the web—but none have done so as dramatically as California. Following the example of Vermont, Oregon, and Washington, on Sunday evening Gov. Jerry Brown signed into law a bill that enshrines the strongest protections against abuses by internet providers in the country. The law, Senate Bill 822, goes even further than the 2015 FCC rules. And since the internet doesn’t change when it crosses state borders, this bill could potentially have far-reaching effects: To comply, internet providers would either have to adhere to these strict new rules nationwide or somehow balkanize the web to create a separate internet for the state—which might not even be possible.
California’s new internet regulation is slated to go into effect in January 2019—but it will never happen if the feds have their way. Within hours of Brown signing the bill into law, senior officials at the Justice Department told the Washington Post that the federal government plans to sue California on the grounds that the new federal net neutrality rules prohibit states from creating their own laws to bypass the FCC’s deregulation. The department filed suit that night, asking for an injunction that would block the law from taking effect, noting that internet providers “cannot realistically comply with one set of standards in this area for California and another for the rest of the Nation—especially when Internet communications frequently cross multiple jurisdictions.” The suit goes on: “The effect of this state legislation would be to nullify federal law across the country.”
There’s a strong chance that the injunction could be granted as early as this week, but it still may take months before the case makes its way in front of a judge. If the injunction is granted, then come January, internet providers will still be allowed to block or throttle internet traffic as they please, in California and anywhere else. All companies have to do, according to the net neutrality rules passed by the Ajit Pai–led FCC, is state that they maintain the right to do so in their terms of service.
This isn’t the only court battle in the fight over net neutrality underway. Mozilla, maker of the Firefox web browser, is currently the lead plaintiff in a suit challenging the new rules—a suit that includes Etsy, Vimeo, and other smaller internet companies. A cadre of public interest nonprofits, like the National Hispanic Media Coalition and Free Press, has also filed suit as well as 23 state attorneys general who argue the FCC’s decision to rescind the internet regulations was “arbitrary, capricious and an abuse of discretion.” Oral arguments in the Mozilla challenge are scheduled for February. But this latest front in the fight for the future of the web might be the most consequential yet, since the new California law actually goes further than not only the Obama-era net neutrality rules but even internet laws that other states have attempted to pass. Specifically, the California bill goes after a discriminatory tactic called “zero rating,” which is when an internet provider privileges some websites and apps over others by not counting their usage against monthly data caps. AT&T, for example, uses zero rating when it allows its DirecTV Now customers to watch without cutting into customers’ data plans. While it could be argued that these plans are good for consumers, consumer-protection advocates have long maintained that zero rating allows internet providers to pick winners and losers online. If watching YouTube didn’t count against your Verizon bill, for example, customers might have extra incentive to watch YouTube instead of another video streaming site, like Vimeo, further entrenching YouTube’s power over competitors.
The FCC has unsuccessfully attempted to pre-empt state laws before, like in 2016, under then-Chairman Tom Wheeler, an Obama appointee, when the FCC lost a case attempting to block laws in North Carolina and Tennessee that restricted the ability of municipal broadband providers to expand their networks and compete more with corporate broadband providers, like Comcast and Verizon. Barbara van Schewick, a professor at Stanford Law School and the director of the Center for Internet and Society at Stanford, says that California’s new net neutrality law is on firm legal footing. “An agency that has no power to regulate has no power to preempt the states, according to case law,” van Schewick said in a statement Sunday.* “When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers. That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protections.”
If California does win this case against the Justice Department, that could give the green light to other state governments that want to make their own internet laws too, a potential mess for websites that could be forced to adhere to a patchwork of rules across the country. “There are other states that are interested in doing this,” said Christopher Terry, a professor of media law at the University of Minnesota, in an interview. “So you may end up with multiple decisions in multiple states, and those are conditions that are ripe for a Supreme Court decision down the road,” Terry said. Ultimately, of course, the soundest way to quell much of the current confusion would be for Congress to pass a law regulating whether internet providers are or are not allowed to discriminate against internet traffic that travels over their networks. But legislation in Congress doesn’t happen overnight, and with so much interest from the public on the issue of network neutrality—which was the most participated rule-making in the history of the FCC, with millions of comments submitted from the public in response to the FCC’s proposed repeal—there’s a strong chance sympathetic lawmakers will attempt to make a political issue out of the topic before clarifying the law. If more members of Congress do decide to amp up their rallying cry, as a handful of Democrats and even some Republicans already have, expect to hear about net neutrality a lot more as the November midterms near.


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