Tag Archives: netneutrality

California net neutrality law can survive federal challenge, lawmakers told


The California senate’s judiciary committee approved, on a party line vote, a proposed net neutrality law, after hearing that it was at least defendable against the inevitable court challenges that cable and telephone companies would file. Senate bill 822 would define blocking, throttling, paid prioritisation and paid or provider-specific zero rating as unfair competition, and enforce those rules via civil lawsuits.

The big question was whether a Californian net neutrality law would withstand the Federal Communications Commission’s declaration that it was preempting state level broadband regulations. Barbara van Schewick, a law and computer science expert at Stanford University who helped draft the bill, explained to the committee why she thinks it will…

I believe this bill is on firm legal ground with respect to the preemption. The case law shows very clearly that an agency only has authority to preempt if it does have authority to regulate…In 2017 the FCC systematically dismantled all of its sources of authority that would allow it to adopt net neutrality rules. They got rid of Title II, that was a firm source of authority. They got rid of section 706, which in 2014 the Verizon court had said that’s a source of regulatory power over the ISPs. And the only thing that’s left is Title I. Unfortunately, that does not give the FCC authority to adopt net neutrality rules, as we’ve known since 2010 when the D.C. circuit struck down the FCC’s order against Comcast for interfering with applications…saying very clearly, you, FCC don’t have ancillary authority to adopt net neutrality regulations under Title I. And that’s why the FCC in its own order in 2017 concludes and says, you know, we’re not just determining that adopting net neutrality is bad policy. Even if we wanted to we now have no authority left to do this.

The only disclosed change was a clarification regarding who could sue ISPs that break the rules – it’s not just the California attorney general. Attorneys for local agencies could go to court. So could “a person who has suffered injury in fact and has lost money or property as a result of the unfair competition”. Or, in practice, a contingency fee lawyer representing such a person.

The usual lobbyists showed up to oppose the bill, including those representing AT&T, Frontier Communications, and the front organisation for Charter Communications, Comcast, Cox Communications and other cable companies, the California Cable and Telecommunications Association.

The next stop for SB 822 is the senate appropriations committee.

Muni broadband can defend net neutrality, but winning isn’t guaranteed


Net neutrality and municipal broadband are two separate issues that overlap in a couple of ways. First, there’s an assumption that muni broadband systems will abide by net neutrality principles, even if not required (but there’s a bill in the California legislature, AB 1999, that would require it). It’s an easy pledge to make now, but it’s not a certainty that muni systems could or would swim against the financial tide if the economics of the business changes significantly.

And the economic structure of the Internet will continue to change, as it has for the past thirty years. Small broadband providers, muni or not, only control traffic up to a certain point. Traffic could be shaped, throttled, blocked or prioritised on the other side of that point, reducing the value of a neutral last mile. Another consideration is the value of privileged access to users, particularly by content providers that rely on advertising. Sharing that revenue could make it possible for big, non-neutral incumbents to drive down the retail price of Internet service, making it impossible for independents to compete on the basis of virtue alone.

Another area where net neutrality and muni broadband overlap is on the political side. The big incumbents – cable and telco – lobby hard against muni broadband in both Sacramento and Washington. Those same lobbyists are working against net neutrality, and paying large amounts of money to legislators who are involved with both issues. There’s a similar, parallel effort to influence state and federal regulators.

There isn’t the same unity – throw weight, I’d call it – on the other side. There’s a core of people who care equally about freedom to use the Internet and freedom to provide the service, but for the most part advocates are involved with one issue or the other. When end-of-the-session horse trading begins, it’ll be much easier for cable’s and telco’s unified, deep pocketed lobbying fronts to cut a deal. Whether their passion is muni broadband or net neutrality, separate, single issue groups will not be happy with the result.

California net neutrality bill bends to telco, cable wishes


It would still ban blocking, throttling, paid prioritisation and some kinds of zero rating, but a California senate committee has pulled some of the sharper enforcement teeth out of a bill to reinstate network neutrality rules. With one exception, though, definitions of banned and permitted practices remain the same.

Senate bill 822 was approved by the senate energy, utilities and communications committee last week on a party line vote, with the condition that undisclosed changes, negotiated behind closed doors, would be made. Those amendments were finally released, and the result is fewer net neutrality enforcement options.

The changes are significant because the headline enforcement mechanism – consumer protection lawsuits by the California attorney general – stands a good chance of being overturned by federal courts. It’s the geekier enforcement methods, with a firmer grounding in state authority, which have better odds of survival. So the fewer of those that in the bill, the likelier the end result will be empty words that have little or no effect on the big Internet service providers, such as AT&T, and Comcast and Charter Communications. Which is why they crowded into the back rooms where their California senate friends watered down the bill.

The chopped sections include…

  • Requiring projects built with Californian broadband and telephone subsidies to abide by net neutrality principles.
  • Putting net neutrality obligations into statewide video franchise awards or renewals for both cable and telephone companies.
  • Bringing energy regulators into the net neutrality loop, as part of California’s smart grid initiatives, with particular direction to assess the impact of net neutrality practices, or the lack thereof, on “resource management and grid reliability”.
  • Designating the California Public Utilities Commission as a net neutrality watch dog.
  • Requiring ISPs to notify the CPUC if they try to take advantage of exceptions written into the bill.

One other enforcement tool is still in SB 822. State agencies and local governments would only be able to purchase broadband service from ISPs that follow net neutrality rules, except in areas where there’s only a single provider. It parallels net neutrality language approved in other states, and is reckoned to have the best chance of surviving court challenges.

The changes also redefine a net neutrality safe harbor. Previously, SB 822 allowed Californian ISPs to offer “different types of technical treatment” as a service to end users, who could freely apply it to content or applications of their choice (and they, and not third parties, would pay for it). That’s been changed to “different levels of quality of service”, with the caveat that a basic service level must be offered to all and optional service levels cannot degrade it. That’s a more subjective definition, arguably one that’s more understandable to consumers, but it could also give ISPs more wiggle room.

SB 822 is up for another hearing in the senate judiciary committee tomorrow.

AT&T, Comcast, Charter get net neutrality help from California senate friends


Network neutrality legislation moved ahead in the California senate yesterday, but it’s not clear what exactly it says. The senate’s energy, utilities and communications committee worked over senate bill 822, before endorsing it on a party line vote and sending it on to the judiciary committee. As is common practice in Sacramento, the committee didn’t vote on the published text of the bill, carried by senator Scott Weiner (D – San Francisco), but conceptually approved it, based on unpublished amendments negotiated secretly on Monday, which will be further modified by changes yet to be dictated by committee chair Ben Hueso (D – San Diego).

At the end of a lengthy hearing, Hueso, a reliable friend of cable and telephone company lobbyists, looked at Weiner and said “there are some little things we have to fix with them and we’ll work with your office on clarifying what that is”.

“What little things?” Weiner asked.

“The mock up”, Hueso said, referring to the draft that Weiner thought the committee had agreed to support.

“You mean like typos or…”, Weiner replied.

“Potentially”, Hueso said with a low chuckle – the sort of nervous laugh you might make when a cop pulls you over and asks if you’ve been drinking. “Nothing major”.

A story by Jon Brodkin in Ars Technica offers some insight into what those little things might be. He obtained copies of unsigned “bill analyses” given to lawmakers by AT&T and the lobbying front used by Comcast and Charter Communications, the California Cable and Telecommunications Association.

That’s another common practice in Sacramento – industry lobbyists will submit anodyne comments for public consumption, and then fire broadsides at legislators behind closed doors, who are very mindful of the millions of dollars they collectively receive from those companies. Also behind closed doors.

However it turns out, it’s clear that the language in SB 822 is moving in the direction urged by telephone and cable company lobbyists. A committee analysis was published over the weekend – something Hueso is in a position to control – and it urged changes friendly to those industry interests. Based on the back and forth at yesterday’s hearing, it seems that the final product will be even friendlier.

Oregon approves its own net neutrality revival


Beginning next year, local and state government agencies in Oregon won’t be able to buy broadband service from providers that don’t abide by the network neutrality principles signed into law yesterday by Oregon governor Kate Brown. The ban includes wireline, fixed wireless and mobile carriers, and extends to service subsidised by public agencies, as well as direct purchases.

An Internet service provider will be on the blacklist if it…

  • Engages in paid prioritization;
  • Blocks lawful content, applications or services or non-harmful devices;
  • Impairs or degrades lawful Internet traffic for the purpose of discriminating against or favoring certain Internet content, applications or services or the use of non-harmful devices;
  • Unreasonably interferes with or unreasonably disadvantages an end user’s ability to select, access and use the broadband Internet access service or lawful Internet content, applications or services or devices of the end user’s choice; or
  • Unreasonably interferes with or unreasonably disadvantages an edge provider’s ability to make devices or lawful content, applications or services available to end users.

There are exceptions. The big one is that if a guilty ISP is the only option in a particular area, then public agencies can do business with it. Otherwise, the Oregon Public Utilities Commission can allow paid prioritisation or other banned activities if there is a particular public interest at stake – think, prioritising police or fire traffic. The OPUC is also the arbiter of what qualifies as reasonable network management practices.

Any broadband provider that crosses any of these redlines has to first quit doing it and then get the OPUC’s blessing before it can go back to selling service to public agencies.

Oregon’s bill is more modest than the one passed by the Washington legislature in February. It only applies to state and local government contracts. On the other hand, it’s likelier to withstand the court challenges promised by lobbyists for the big incumbents.

Two similar net neutrality revival bills are up for consideration in the California legislature. Senate bill 460 is on ice in the assembly, perhaps waiting for senate bill 822 to make its way over from the senate side. It’s scheduled for a committee vote next week.

San Francisco court punts net neutrality decision back to D.C.


It was nice while it lasted, but Washington, D.C.’s inexorable gravity has pulled the court fight over network neutrality – or lack thereof – away from San Francisco and back inside the Beltway.

Originally, a judicial lottery determined that the fifteen challenges to the Federal Communications Commission’s decision to roll back network neutrality and broadband status as a common carrier service would be heard by the federal ninth circuit appeals court in San Francisco, where Santa Clara County and the California Public Utilities Commission filed their cases. The prospect of the future of net neutrality being decided in the shadow of Silicon Valley was delicious, but not for the D.C.-based groups that made up the bulk of the challengers. So they asked for the consolidated cases to be moved back to D.C…

Transfer is warranted by all of the factors considered by this Court, including the convenience of the parties, the choice of forum made by the majority of the petitioners, and the fact that this Court’s sister Court for the D.C. Circuit has considered virtually identical issues in inter-related proceedings. Specifically, this case is the fourth, “follow-on” phase in the review of the Federal Communications Commission’s “network neutrality” actions; all prior phases have been adjudicated by the D.C. Circuit. That Court has issued four decisions in these prior three proceedings, variously affirming, or disagreeing with, the FCC’s actions. Transfer is warranted in the interest of continuity.

Santa Clara County and the CPUC didn’t support the request, but they didn’t oppose it either and the ninth circuit approved the transfer.

One of the first issues that the D.C. appeals court will likely decide is whether or not to put the FCC’s net neutrality repeal on hold while the cases are being heard. In past net neutrality cases, the D.C. court declined to do so.

Telco lobbyists eager to sue states over net neutrality laws


AT&T, Frontier Communications and other telcos will meet state and local level network neutrality initiatives head on. Using their Washington, D.C. lobbying front, USTelecom, they intend to “aggressively challenge state or municipal attempts to fracture the federal regulatory structure”. Or lack thereof.

In a rambling blog post that oddly invokes the original U.S. Articles of Confederation – it hasn’t had any legal effect for more than 200 years but even so, it explicitly gave states the power to make such decisions – USTelecom CEO Jonathan Spalter pledges to say “hell no” to any attempt by states or municipalities to revive network neutrality obligations.

Two net neutrality revival bills are pending in Sacramento, and the Oregon and Washington legislatures have already approved their own versions. There’s no question that these bills will be challenged in court. Conventional wisdom is that state (and local) purchasing requirements – where agencies can only buy broadband service from providers that adhere to particular net neutrality principles – have a good chance of surviving, but explicit state-level regulations don’t.

Not necessarily. There’s a makable case that states do have the authority to impose net neutrality rules, at least for intrastate services, as telecoms law expert Harold Feld explains

We have well over 80 years of history of states regulating how local telephone companies and local cable companies do business within their state. So this isn’t a case where Congress has “preempted the field” as against any state regulation. To the contrary, states traditionally have lots of authority over how they regulate any offering of local service, including an ability to impose non-discrimination requirements.

Feld argues that since the Federal Communications Commission declared that it doesn’t have the authority to regulate Internet service providers, it doesn’t have the authority to preempt state laws in that regard either.

So far no one, including USTelecom, has taken any state net neutrality laws or executive orders to court. Technically, the FCC’s decision rolling back its own rules hasn’t taken effect yet. If it does – it’s also facing legal challenges – expect to see a rush to the courthouse door.

California senate considers expanded net neutrality rights and enforcement tools


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, Weiner’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.

Weiner 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.

FCC will have to defend net neutrality repeal in San Francisco


The luck of the draw means the future of network neutrality and broadband’s status as a common carrier service will be argued in San Francisco. Credit for that is split between the California Public Utilities Commission and Santa Clara County, who filed separate challenges to the Federal Communications Commission’s decision to eliminate net neutrality rules and scrap common carrier obligations for broadband service with the ninth circuit federal appeals court.

Several other organisations filed their appeals in Washington, D.C., and a federal judicial panel randomly gave the job of consolidating and deciding the cases to the San Francisco-based ninth circuit.

Both the CPUC and Santa Clara County call the FCC’s decision “arbitrary, capricious, and an abuse of discretion” and claim that it violates both the federal constitution and federal communications law. In other words, they’re challenging the way the decision was made rather than its substance. That’s an easier – which is not to say easy – case to make. Republican commissioners rushed the decision through, and might not have dotted all the i’s and crossed all the t’s. To put it mildly, democratic commissioner Jessica Rosenworcel certainly thinks so – she called the FCC’s action a “rash decision” resulting from a “corrupt process”…

This decision and the process that brought us to this point is ugly. It’s ugly in the cavalier disregard this agency has demonstrated to the public, the contempt it has shown for citizens who speak up, and the disdain it has for popular opinion. Unlike its predecessors this FCC has not held a single public hearing on net neutrality.

There’s no shortage of Californians involved in the challenges to the FCC’s decision. California attorney general Xavier Becerra joined the appeal filed by his New York counterpart. Mozilla filed its own challenge. The Open Technology Institute and the Coalition for Internet Openness did too. Both list several Silicon Valley companies as major backers. OTI counts Google and Apple among its contributors (as well as Comcast and Charter, although I doubt this is what they signed up for).

CPUC vs. FCC, petition for review of order of agency, board, commission, or officer, 22 February 2018
County of Santa Clara vs. FCC, petition for review, 22 February 2018
Coalition for Internet Openess, petition for review, 5 March 2018
U.S. judicial panel on multidistrict litigation, in the matter of restoring internet freedom, consolidation order, 8 March 2018

State lawmakers can do stupid things to the Internet too


State legislatures and governors are stepping into the void left by the Federal Communications Commission when it rolled back network neutrality last year. Laws reinstating net neutrality requirements of one kind or another passed or are pending in California, Washington, Oregon and elsewhere. In Montana, governor Steve Bullock did it by executive order.

That’s a trend that cheers up net neutrality advocates, but there’s another side to it that’s not so pleasant and offers a solid argument for keeping states out of the business of regulating the Internet. In at least two states – California and Rhode Island – legislators introduced bills that regulate Internet services on the basis on content.

Two democratic state senators in Rhode Island want ISPs to block pornography, although users would be able to pay a $20 fee to unblock it.

In California, it’s politics that has assemblyman James Gallagher (R – Chico) all hot and bothered. He thinks “social media Internet web sites” and search engines should be politically neutral. At least as he understands the concept. So he introduced assembly bill 3169, which would make it illegal for a social media platform or search engine to remove or manipulate content “on the basis of the political affiliation or political viewpoint of that content”.

Gallagher defines social media broadly. It includes, but isn’t necessarily limited to, “videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations”.

Both his bill and the Rhode Island measure are on a collision course with the First Amendment, which exists to prevent politicians from using the coercive power of government to control what content is published. Or not.

It doesn’t look like he’s done any deep thinking on the subject. It’s possible – likely, I’d guess – Gallagher knows his bill has zero chance of becoming law and just wants to score some cheap points with his political base. It’s a particularly noxious way to do it, though.