No power to regulate broadband means the FCC has no power to preempt California’s net neutrality law

by Steve Blum • , , ,

California is firing back at the monopoly model telecoms companies that want to block the state’s network neutrality law. Senate bill 822 was passed by the legislature and signed by governor Jerry Brown in 2018. It’s been on hold while a court fight over the Federal Communications Commission’s repeal of its own net neutrality rules played out.

Now it’s in front of a federal judge in Sacramento. The job of defending SB 822 belongs to California attorney general Xavier Becerra. His office filed its first full response to the claim that SB 822 is preempted by the FCC’s decision.

When the FCC declared that broadband is an “information service” and not a common carrier “telecommunications service”, it put broadband into a category of services that it’s not allowed to regulate in any meaningful way. That lack of authority was the FCC’s basis for repealing net neutrality rules: no authority means no rules.

In the brief, the California attorney general’s office argues that if there’s no authority to regulate, then the FCC also lacks authority to preempt state laws in that regard. That’s taken directly from the D.C. appellate court decision last year that mostly upheld the FCC’s net neutrality repeal. One big exception was the FCC’s attempt to impose a blanket preemption on state level broadband regulations.

Consequently, the brief concludes, California can go its own way…

The FCC repealed the bulk of the [Obama era net neutrality rules] because it determined it had no statutory authority to impose net neutrality conduct rules on [broadband] providers. That is different from a congressionally-authorized decision to refrain from regulating [broadband] providers; therefore, the repeal does not have preemptive force. That SB 822 enacts many of the same net neutrality protections repealed by the 2018 Order does not, in and of itself, result in conflict preemption. It is “quite wrong” to view the absence of federal regulation, on its own, “as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.”

The first decision that federal judge John Mendez has to make is whether to ice California’s net neutrality law while the court battle drags on. If he says no and rejects Big Telecom’s request for a preliminary injunction that would block enforcement of SB 822, net neutrality will be the law of the land in California.