California senate considers expanded net neutrality rights and enforcement tools

by Steve Blum • , , , ,

A second, more detailed network neutrality revival bill is on the table at the California capitol. Senator Scott Wiener (D – San Francisco) introduced senate bill 822 earlier this year, but it was little more than a statement of intent to jump into the Internet regulation void left by the Federal Communications Commission when it repealed network neutrality rules and stripped broadband of its common carrier status. He amended it on Tuesday, adding in a long list of outlawed practices and ways to enforce the ban.

Like senate bill 460, which was approved by the senate and sent on to the assembly in January, Wiener’s bill bakes net neutrality into California’s consumer protection laws and requires state and local governments to buy broadband service from companies that follow those rules.

His definition of net neutrality is more expansive, though, adding zero rating to the list. That’s the practice of giving particular Internet traffic – an Internet service provider’s own video streams, for example – a competitive advantage by not counting it toward a customer’s data caps. ISPs wouldn’t be allowed to put up a toll gate and charge content companies for the privilege of reaching subscribers, or to charge customers different prices for the bandwidth used by different applications, or squeeze other services – think, cable channels – onto a consumer broadband connection. The FCC’s three bright line rules would also be revived: no blocking, throttling or paid prioritisation.

Proposed enforcement mechanisms include:

  • Lawsuits by consumers or the California attorney general.
  • Requiring state and local governments to buy broadband service from ISPs that follow the rules, unless there’s only one service provider available in a given area.
  • Allowing government agencies to claw back past payments if their ISP changes its mind.
  • Limiting state broadband subsidies – for infrastructure or universal service – to companies that follow net neutrality rules.
  • Specifically requiring cable and other video service companies that have a statewide franchise to comply with net neutrality requirements.
  • Taking net neutrality benefits into account when planning the state’s smart energy grid.
  • Give the some of the job of sorting out what’s allowed or not to the California Public Utilities Commission.

Wiener included a couple of big exceptions. Public safety communications could be prioritised or otherwise given a fast lane, and individual subscribers could choose to pay for restricted service, so long as “basic default service” was available and the restrictions were generic. In other words, an ISP could sell a service plan that speeds up all video traffic, but not one that only gives priority to, say, Netflix. The details of those kinds of plans – and any other service terms – would have to be fully disclosed to consumers and reviewed by the CPUC.

Some, if not all, of the bill is on thin legal ice, as a senate judiciary committee staff analysis concluded. The FCC tried to categorically preempt state law of this sort in its net neutrality repeal decision – it’ll be up to the courts to decided if it succeeded. Adding broadband obligations to statewide video franchises crosses another red line – up until now, at least, there’s been a regulatory firewall between the two kinds of services. Adding blanket broadband conditions to universal telephone service programs poses the same issues.

But those become problems only after lawmakers approve the bill and the governor signs it. There’s a long and uncertain legislative road to travel before that happens.