California net neutrality law stuck in deep freeze as federal appeal drags on

by Steve Blum • , , ,

California’s network neutrality law won’t be enforced for at least a few more months. Last year, California attorney general Xavier Becerra agreed not to enforce the 2018 law enacted by California senate bill 822 while the legality of the Federal Communications Commission’s repeal of net neutrality rules was still being challenged at the federal level. On Friday, the wait got longer as four new petitions asking for rehearings of an October federal court decision were filed with the federal appeals court based in Washington, D.C. – aka the D.C. circuit. Links are below (h/t to Ars Technica for the pointer).

One bit of good news for SB 822 is that it looks like the FCC is sitting out this round. The dust hasn’t completely settled, but it appears that the FCC won’t contest that October decision. The decision generally blessed the rollback of net neutrality rules, but also said the FCC couldn’t preempt state broadband laws with a simple wave of its hand. That left the door wide open for state laws, such as SB 822, which prohibit broadband service providers from blocking, throttling or prioritising particular Internet traffic for their own gain – say, slowing down YouTube while speeding up AT&T Now or Xfinity Stream.

Network neutrality advocates, led by the Mozilla Corporation, filed the original appeal of the FCC’s 2017 net neutrality rollback. The October decision – by a panel of D.C. circuit three judges – rejected most of Mozilla’s arguments. Their decision said, in effect, that the FCC acted within its authority when it repealed net neutrality rules two years ago.

But.

Since the FCC no longer considers broadband to be a telecommunications service, those judges also said it no longer has authority as a telecoms regulator to preempt state net neutrality laws. That was the same rationale offered by supporters of SB 822 as it made its tortuous way through the California legislature.

The next step was to ask the entire membership of the D.C. circuit – at least the 11 active judges – to rehear the case en banc. Friday was the deadline to do so. Mozilla requested an en banc review, as did the California Public Utilities Commission and the County of Santa Clara, along with a second group of net neutrality advocates and the National Hispanic Media. If the D.C. circuit grants that request, we might be looking at another year or more of legal wrangling there. Regardless, any decision or lack thereof can still be appealed to the federal supreme court.

Petitions for Rehearing or Rehearing En Banc of appeal of FCC net neutrality repeal, 13 December 2019
Mozilla, et al
California Public Utilities Commission, et al
Public Knowledge, et al
National Hispanic Media Coalition