California enacts strongest net neutrality protections in the nation — and the Trump administration sues

September 30, 2018
Jazmine Ulloa

Gov. Jerry Brown on Sunday restored net neutrality rules in California that were repealed under the Trump administration, setting up a legal battle with the federal government over whether states can prevent companies from blocking access to the internet.

News that the governor signed the ambitious new law was swiftly met with an aggressive response from Justice Department officials, who announced soon afterward that they were suing California to block the regulations. The state law prohibits broadband and wireless companies from blocking, throttling or otherwise hindering access to internet content, and from favoring some websites over others by charging for faster speeds.

“Under the Constitution, states do not regulate interstate commerce — the federal government does,” Atty. Gen. Jeff Sessions said in a statement Sunday. “Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy.”

Ajit Pai, the Trump-appointed chairman of the Federal Communications Commission who over nine months worked to shelve the federal net neutrality regulations, said in a statement that he was pleased with the lawsuit, pointing to a federal appellate court ruling that he said found “state regulation of information services is preempted by federal law.”

“I look 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,” Pai said.

The bill’s August passage in the Legislature capped months of feuding between tech advocates and telecom industry lobbyists. Telecom giants such as AT&T and Verizon Communications poured millions into killing the legislation, while grass-roots activists fought back with crowdsourced funding and social media campaigns.

California leaders cheered the governor’s approval of the bill Sunday, saying the new rules were vital to protect fair access to the internet and part of the state’s resistance to the Trump administration on tech, immigration and climate change policies.

“The fight for social change and progressive values is directly tied to a free and open internet,” said Assemblyman Miguel Santiago (D-Los Angeles), who signed on as co-author of the legislation after he faced public pressure when he attempted to scale it back. “This measure ensures that we, in California, will maintain a free and open internet that doesn’t discriminate or price users or content differently.”

Sen. Scott Wiener (D-San Francisco), who introduced the net neutrality proposal, said he believed California would be able to defend it in court.

“We’ve been down this road before: when [President] Trump and Sessions sued California and claimed we lacked the power to protect immigrants,” he said. “California fought Trump and Sessions on their immigration lawsuit. California won — and California will fight this lawsuit as well.”

Experts have said the new law would impose the toughest net neutrality regulations in the country by reinstating the rolled-back federal regulations at the state level. It tasks the state attorney general with evaluating potential evasion of the net neutrality rules.

It also adds new restrictions on some zero-rated data plans, package deals that allow companies such as Verizon or Comcast to exempt some calls, texts or other content from counting against a customer’s data plan. Those limits prohibit plans that exempt content from some companies but not the same type of content from others — video streamed on YouTube but not Hulu, for example.

National Democrats, including House Minority Leader Nancy Pelosi, urged Brown to sign the bill as net neutrality became a rallying issue for the party’s candidates in House races across the country.

Speaking at a news conference in San Francisco this month, Pelosi commended the grass-roots mobilization behind the effort and read a letter from Rep. Anna G. Eshoo (D-Menlo Park), who has led the charge for net neutrality at the federal level. Eshoo denounced a recent case in which firefighters were reported to have been hindered by inadequate internet access while battling the Mendocino Complex fire.

“This is where public safety and access to the internet and no throttling involved are so important,” Pelosi said.

On the Assembly and Senate floors, state lawmakers clashed over whether the state should step in to fill a role some said was best left to the federal government. To opponents, the rules represented burdensome, harsh regulations on companies; for proponents, they were strong and necessary protections for consumers who can’t pay their way out of internet “slow lanes.”

Sen. Ling Ling Chang of Diamond Bar was the lone Republican to vote for the bill in the state Senate. The legislation received overwhelming support from both parties in the Assembly, as opposition to the federal rollback of the rules has remained overwhelmingly bipartisan.

Tech activists and advocacy groups say other states are sure to follow California and described the rules as crucial to protect open access to the internet for impoverished and marginalized communities.

Haleema Bharoocha of the Oakland-based Greenlining Institute, a racial justice and economic policy center, said the internet had given her a platform to combat sexual harassment and raise the voices of other Muslim women in the #MeToo movement.

“Net neutrality has given me a voice online when I’m not able to speak offline,” she said at the San Francisco news conference.

Still, telecom industry groups and lobbyists warn that a legal challenge of the new law could make its way to the Supreme Court.

“We all support strong and enforceable net neutrality protections for every American — regardless of where they may live. But this bill is neither the way to get there, nor will it help advance the promise and potential of California’s innovation DNA,” said Jonathan Spalter, president and chief executive of USTelecom, a Washington-based lobby group.

California Atty. Gen. Xavier Becerra, who along with his counterparts in other states sued the FCC over its net neutrality repeal, on Sunday said his office remained committed to protecting the state rules. But he has cautioned that his agency would need additional funding and staff to complete its new regulatory duties.

"While the Trump Administration continues to ignore the millions of Americans who voiced strong support for net neutrality rules, California — home to countless start-ups, tech giants and nearly 40 million consumers — will not allow a handful of power brokers to dictate sources for information or the speed at which websites load,” he said.

California is one of more than 25 states to consider net neutrality protections since the FCC voted late last year to reverse the Obama-era internet regulations. FCC Chairman Pai and Republicans have called for an end to the utility-like oversight of internet service providers.

The rules, enacted in February 2015 and ended in June, barred broadband and wireless companies such as AT&T Inc. and Verizon from selling faster delivery of some data, slowing speeds for certain content or favoring selected websites over others.

Since then, tech companies including Amazon and Facebook have filed briefs in support of the states’ lawsuit against the FCC to restore net neutrality. But Pai has remained vocal about his opposition to the Obama-era rules and California’s own net neutrality proposal, calling it “a radical, anti-consumer internet regulation bill” during a speech this month at the conservative-leaning Maine Heritage Policy Center.

An additional proposal by Sen. Kevin de León (D-Los Angeles) was shelved in the state Assembly. It would have denied public contracts to companies that fail to follow the new state internet rules, but it sunk amid opposition over last-minute amendments.

Soon after the passage of Wiener’s bill, he and other legislators said they worked with the state attorney general’s office to make certain SB 822 would be able to withstand legal challenges and said they were prepared to battle the telecom industry in court.

“The bottom line is this,” De León said. “The internet is vital to our democracy because it is part of our daily lives.”

 

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