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Big telecom drops lawyers and lobbyists on California’s net neutrality law

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Lobbying front organisations for AT&T, Charter, Comcast, Frontier and mobile carriers joined forces to mount another legal challenge to California’s new network neutrality law on Wednesday. The four are the American Cable Association (ACA), the Cellular Telecommunications Industry Association (CTIA), the National Cable Television Association (NCTA) and the U.S. Telephone Association (USTelecom) – they keep trying to rebrand themselves, but that’s what the initials originally stood for, and what they’re really about.

They filed a complaint and motion for an injunction in a Sacramento federal court, claiming that the network neutrality law – senate bill 822 – signed by governor Jerry Brown on Sunday is “a classic example of unconstitutional state regulation”. Because the Internet does not stop (or start) at California’s borders, it is inherently an interstate service, their argument goes. So, they say, the Federal Communications Commission’s most recent net neutrality decision overrides California law…

The 2018 Order expressly “preempt[s] any state or local measures that would effectively impose rules or requirements that [the FCC has] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service” addressed in the 2018 Order.

SB–822 plainly falls within the scope of this express preemption provision. It is a state measure that seeks to reinstate net neutrality requirements that the 2018 Order repealed.

The lobbyists’ challenge follows a similar filing by the federal justice department on Sunday evening. It’s likely that the two cases will be combined, but for now the Trump administration’s challenge is taking the lead. It’s assigned to judge John Mendez, who scheduled the first hearing in the case for 14 November 2018.

California’s defence is led by attorney general Xavier Becerra, who has aggressively gone after high profile Trump administration policies, but also takes money from AT&T, Comcast and Charter. His response to their lawsuit was to tweet that it “was brought by power brokers who have an obvious financial interest in maintaining their stronghold on the public’s access to online content”. We’ll get a look at how he intends to do that in a couple of weeks, when his first response is due.

Court gives California three weeks to defend net neutrality law

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The gears of justice are grinding on California’s newly minted network neutrality law. Yesterday, the federal court in Sacramento gave California attorney general Xavier Becerra three weeks to respond to the Trump adminstration’s attempt to nullify senate bill 822.

Signed Sunday afternoon by governor Jerry Brown, the law reinstates the core elements of the Federal Communications Commission’s 2015 ban on blocking, throttling and paid prioritisation of Internet traffic on the basis of content, and also clarifies that selective zero rating is prohibited. It’s a close cousin of paid prioritisation: Internet service providers charge subscribers to watch competitors’ video streams, but let them download in-house content for free.

If the court doesn’t act, ISPs have to begin following the new rules on 1 January 2019. The Trump administration is hoping for action before then. In a motion filed Sunday evening, the federal justice department asked the court to block California’s law before it takes effect. Acknowledging California’s influence, the justice department told the court that unless the law is blocked, net neutrality rules will return to all 50 states

Given that ISPs cannot realistically comply with one set of standards in this area for California and another for the rest of the Nation — especially when Internet communications frequently cross multiple jurisdictions — the effect of this state legislation would be to nullify federal law across the country.

Becerra has the job of defending SB 822. He tweeted his support for it after the lawsuit was filed on Sunday night. Yesterday, he told the Sacramento Bee information shouldn’t be throttled “simply because there are a few robber barons who get to control the flow of that information”, and promised what the Bee characterised as a “vigorous defence”.

So far, California’s big monopoly model ISPs – AT&T, Frontier, Comcast and Charter – have let the FCC and their other friends in the Trump administration do their talking for them. Republican commissioner Michael O’Rielly expressed his appreciation for the justice department’s action and defended paid prioritisation by ISPs.

Jessica Rosenworcel, currently the lone democrat on the FCC, offered “a hefty thank you to the Golden State for your effort to get right what the FCC got wrong”. But she stopped short of predicting that California’s law will survive court challenges. Rosenworcel is a smart lawyer – it pays to listen to what she doesn’t say.

Brown signs SB 822 and establishes Californian net neutrality rules, Trump lawyers hit back

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Jerry Brown doesn’t have a problem stepping into policy territory claimed by the federal government. He’s signed bills that fly in the face of Trump administration immigration policy, and carved out a place for California in international environmental diplomacy. You can add telecoms policy to that list. Yesterday, he signed senate bill 822 into law. Authored by senator Scott Weiner (D – San Francisco), it reinstates network neutrality rules that were approved by the democratic majority on the Federal Communications Commission in 2015, and quickly scrapped when republicans took over control of the FCC in 2017.

Trump administration lawyers were on hot standby. The federal justice department had a press release and two court filings ready to go, and found time between football games on Sunday night to upload them to a federal court in Sacramento (links below).

Assuming for the moment that SB 822 withstands legal challenges, come the new year Internet service providers in California won’t be able to block or throttle subscribers’ traffic on the basis of its content, or give some bits priority over others because someone is paying them to do so. Or because they own the content. That ban also applies to zero rating, which is a close cousin of paid prioritisation where ISPs let subscribers watch as much in-house video as they want for free, but charge for data used to download competitor’s content. California’s new rules bar ISPs from fiddling with upstream connections to content providers and others, if it’s intended to achieve the same result.

SB 822 travelled a rocky road to victory. Introduced by senator Scott Wiener (D – San Francisco) earlier this year, it was gutted by AT&T and Comcast’s friends on the assembly’s communications and conveyances committee. The committee chair, assemblyman Miguel Santiago (D – Los Angeles), was slammed by a tsunami of online rage, although his principle wingmen, Evan Low (D – Santa Clara) and Eduardo Garcia (D – Imperial) escaped unscathed. They were forced to back track, and the bill finally cleared the legislature on super majority votes, and yesterday won Brown’s approval.

The ink on Brown’s signature barely had time to dry before the feds filed a complaint, um, complaining that California “seeks to second-guess the federal government’s regulatory approach”.

Duh.

AT&T, Comcast and other monopoly model ISPs will pile on to the federal justice department’s lawsuit – they’ve promised as much. But the Trump administration is happy to do the heavy lifting for them. Its core argument is “pursuant to the supremacy clause [of the federal constitution] and federal statutes, the Federal Communications Commission sets uniform, national policies governing interstate communications, and contrary state laws — like the one challenged here — are preempted”.

The federal judge who gets the case will have to unravel a circular argument. The Trump administration claims that the FCC declared broadband isn’t a common carrier service, so California can’t impose common carrier rules. Which, it says, is what SB 822 does. SB 822’s supporters say that because the FCC also reclassified broadband as an information service, it gave up any preemption power it might have. So states can use the authority they share with the federal government to establish consumer protection laws. Which is what, supporters say, SB 822 does.

Although supporters of SB 822 have plausible arguments against federal preemption, it’s a question that’s very much in play. A lot can happen between now and the end of the year. Enjoy it while you can.

California senate bill 822, as signed by governor Jerry Brown, 30 September 2018

Complaint for declaratory and injunctive relief, the United States of America versus the State of California; Edmund Gerald Grown jr., governor of California and Xavier Becerra, attorney general of California, 30 September 2018
Memorandum of law in support of [the federal justice department’s] motion for preliminary injunction

Feds launch lawyers at California net neutrality law, on high political alert

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That didn’t take long.

Less than two hours after the announcement that governor Jerry Brown signed senate bill 822 and made network neutrality the law of the land in California, the federal government struck back. The federal justice department filed a lawsuit challenging it with the federal district court – the eastern district – that covers Sacramento.

They had their finger on the button. Two filings and the obligatory press release were ready to go. One is a complaint, um, complaining that California “seeks to second-guess the Federal Government’s regulatory approach”.

Duh.

The other asks for a permanent injunction that would squash California’s net neutrality law.

It’s Sunday, so it’s a fair conclusion that the rush to the courthouse door is political rather than an exercise in legal professionalism. But the complaint and motion for injunction will be waiting when Sacramento-based federal judges punch in tomorrow morning.

Governor Brown signs California net neutrality law

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Network neutrality is now the law of the land in California. Governor Jerry Brown signed senate bill 822 today. That’s according to a tweet by the bill’s author, senator Scott Wiener, (D – San Francisco).

It reinstates network neutrality rules that were scrapped last year by the Federal Commission. The three bright line rules established by the FCC in 2015 – no blocking, throttling or paid prioritisation of Internet traffic – are back on the books. Preferential zero rating is included on the list of banned practices. It’s a close cousin of paid prioritisation: Internet service providers let subscribers download unlimited in-house video but charge them to watch other platforms. Upstream tricks, designed to evade those rules, are also forbidden.

Court challenges are a dead certainty. But in theory, California’s net neutrality regime takes effect on New Year’s Day.

California net neutrality bill faces midnight deadline

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UPDATE 2:the Trump administration’s political hacks in the justice department were on alert – they challenged SB 822 in federal court. Quickly. Click here for more.

UPDATE: Brown approved SB 822. Click here for more.

Today is decision day for network neutrality in California. Governor Jerry Brown must either sign senate bill 822 into law, or veto it, or simply ignore it and let it become law automatically tonight, when the midnight deadline for acting passes.

It would reinstate rules adopted by the Obama adminstration’s Federal Communications Commission in 2015, then repealed in 2017 by the Trump administration’s FCC. Under SB 822, ISPs would be banned from blocking, throttling, paid prioritisation and zero rating of subscriber’s traffic based on content. Upstream evasions, through deals with content providers or others at interconnection points, would be prohibited as well.

According to Scott Lay at Around the Capitol, Brown had 183 bills sitting on his desk as of Friday night. He acted on 56 bills yesterday, leaving 127 bills to decide today. That’s a lot – a little bit more than 10% of his annual bill signing workload in one day. The legislature sent him a total of 1,217 bills this year, most of them during the end of the session crunch in the last week of August.

SB 822 was carried by senator Scott Wiener (D San Francisco). He’s held two pro-SB 822 rallies in the past month: one in San Francisco featuring Nancy Pelosi, a San Francisco congresswoman and minority leader of the federal house of representatives, and one in Los Angeles with fellow California legislators. He’s a prolific tweeter, but he hasn’t said much about it in the past couple of weeks

I predicted Brown will sign the bill into law and I’m standing by that. But it’s no more than a guess. Brown makes his own decisions for his own reasons and he’s not afraid to use his veto pen. So far, he’s vetoed 16% of the bills he’s acted on, and that rate has been rising as the deadline nears – nearly 40% of yesterday’s bills were vetoed.

Prediction: Brown will sign California net neutrality bill into law

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With a week left to go before a decision is due, California governor Jerry Brown hasn’t said which side he’s going to land on in the network neutrality debate. Senate bill 822, which would restore net neutrality rules in California, is still sitting on his desk.

Brown does not give away much, if anything, when he’s considering bills. He gives bills serious thought. Some more than others, but he makes his own decisions. He’s good at balancing political, fiscal, operational and philosophical considerations. Which ones he gives more weight to depends on the issue.

So with full awareness that no one knows what he will do with a bill until he does it, I’m going to make a prediction: Brown will sign SB 822 into law.

With the death of SB 460, which would have required state and location agencies to only buy Internet service from net-neutral providers, SB 822 is less of a threat to telecoms companies. SB 460 was about how state and local taxpayer money is spent and the Federal Communications Commission doesn’t have the authority to preempt it. There is a significant possibility of federal preemption of SB 822, though, which would solve any problems that AT&T, Comcast or Charter Communications have with the bill.

So the political downside of SB 822 – reduced campaign cashflow from big telecom – is less than it would have been. On the other hand, it’s a flagship political issue for democrats, particularly in Washington, D.C. It would be hard for Brown to defer to the Trump administration on a high profile issue like net neutrality, even if he wanted to.

Politically, SB 822 is a plus for democrats, and it has minor financial and administrative consequences for state government operations. The only wild card is whether Brown has fundamental, philosophical objections to the state jumping into telecoms policy territory.

I don’t think he does. Quite the contrary.

AT&T and Comcast know Internet content censorship is real and it works

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I’ve seen what a world without network neutrality looks like, and it isn’t pretty. I spent a couple of weeks in China this summer with a Linux laptop and an Android phone. There was 4G mobile broadband available everywhere I went, and WiFi availability is common. But that only gets you so far.

My gmail account was blocked, along with all the other Google services I use. To get around that, I set up an Office 365 account with an alternate domain name. Microsoft appeased Beijing by doing business its way, and seems to operate without any particular restrictions. Just the restrictions that are imposed on any online company doing business on the mainland.

That meant that when I used the Bing search engine, my results were filtered to ensure I didn’t see anything that upset my Chinese hosts. I did have a VPN that occasionally let me climb over the Great Firewall, but it appeared to be playing a game of whack-a-mole with the government: an IP address that worked yesterday won’t necessarily be accessible tomorrow. I was cut off from social media. Maybe it’s healthy to take a break every so often, but government enforced abstinence is oppressive.

News was restricted. I couldn’t reach my go-to sites. The creepiest moment came in Beijing where my hotel had the BBC on its in-house TV system. While I was watching a newscast, the presenter began reading a story about unrest in western China. Halfway into her first sentence, the screen went black and stayed that way for several minutes. When it came back on, a harmless story about trade was running.

Someone was watching the live BBC feed with a quick finger on the kill switch, waiting for content that doesn’t walk the official line. Content filtering is real. It’s not a boogyman dreamed up by net neutrality advocates.

It can be done, it is being done and it’s not just about money. Without net neutrality rules, there’s nothing to prevent AT&T or Comcast or any other ISP from filtering out unflattering news or blocking websites that contradict corporate messages. That’s a power that the U.S. constitution properly denies to the U.S. government. There’s equally good reason to deny it to telecoms monopolies that have as little accountability and nearly the same degree of technical control over Internet content as the Chinese government has.

California senate bill 822 would reinstate net neutrality rules that can be the first line of defence against censorship empowered by monopoly control of the lines of communication, whether it’s in the service of politics or profit. It’s now up to governor Jerry Brown to decide if it becomes law.

AT&T, Comcast, Charter paying big bucks to California’s anti-net neutrality legislators

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California’s biggest telecoms companies – AT&T, Verizon, Comcast, Charter Communications and their lobbying fronts – are being very generous to the members of the assembly’s communications and conveyances committee who ripped the guts out of senate bill 822 back in June. That’s the bill, authored by senator Scott Wiener (D – San Francisco) that would restore network neutrality rules in California. If governor Jerry Brown signs it.

The damage done was reversed, after netizens went feral on the committee’s chair, assemblyman Miguel Santiago (D – Los Angeles) and democratic party leaders leaned on him. But both the result and the process Santiago used to ram the amendments through were a low point in legislative integrity in Sacramento this year.

According to research done by MapLight, a non-profit that tracks political money, big telecom’s friends got big telecoms bucks (h/t to Fred Pilot at the Eldo Telecom blog for the heads up)…

The 11 California lawmakers who let amendments that would have gutted a landmark net neutrality measure pass through a key committee received almost $1 of every $6 contributed by internet service providers during the current election cycle, according to a MapLight analysis.

Since the beginning of 2017, the Assembly members who either abstained or voted for the June amendments that weakened the net neutrality bill received more than $220,000 in contributions from Comcast, Verizon, AT&T, Charter Communications, and the California Cable & Telecom Association. During the current election cycle, the industry has made about $1.3 million in campaign donations to Assembly members and candidates.

According to a Sacramento Bee article by Bryan Anderson, Santiago raked in almost $40,000 from the telecoms companies, the most of any of his colleagues. Second place went to one of his allies, Evan Low (D – Santa Clara), who accepted $35,000 in payments from the same companies. Low provided key support for Santiago at the hearing, and carried a bill for AT&T in 2016 that would have allowed the telco to rip out copper networks and replace them with low capacity wireless systems.

Santiago’s other wingman in the debacle, Eduardo Garcia (D – Imperial), who authored last year’s subsidy giveaway to AT&T and other incumbent Internet service providers, has also done well. Big telecoms interests have, so far, paid him $24,600 in this election cycle, according to FollowThe Money.org.

“Crony” capitalist FCC chair rips California’s “nanny state legislators”

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Ajit Pai verbally grasped at straws to slam a California bill that would reinstate network neutrality rules. In a speech in Maine, the chair of the Federal Communications Commission snarked “I can understand how they succumbed to the temptation to regulate. After all, I suppose a broadband pipe might look to some like a plastic straw”. He was referring to Californian attempts to send plastic straws the way of the disposable bag.

Pai repeated a common argument used by industry lobbyists – that senate bill 822 would end popular free data plans – and called it “a radical, anti-consumer Internet regulation bill”. He predicted it wouldn’t stand up to legal challenges…

The broader problem is that California’s micromanagement poses a risk to the rest of the country. After all, broadband is an interstate service; Internet traffic doesn’t recognize state lines. It follows that only the federal government can set regulatory policy in this area. For if individual states like California regulate the Internet, this will directly impact citizens in other states.

Among other reasons, this is why efforts like California’s are illegal.

The author of SB 822, state senator Scott Wiener (D – San Francisco), wasted no time in shooting back at Pai

Unlike Pai’s FCC, California isn’t run by the big telecom and cable companies. Pai can take whatever potshots at California he wants. The reality is that California is the world’s innovation capital, and unlike the crony capitalism promoted by the Trump Administration, California understands exactly what it takes to foster an open innovation economy with a level playing field…

Since the FCC says it no longer has any authority to protect an open internet, it’s also the case that the FCC lacks the legal power to preempt states from protecting their residents and economy.

Wiener’s optimism has yet to be proven out. The crony capitalism he derides is alive and well in Sacramento – he had to overcome it to get SB 822 as far as he has. But it’s not a done deal yet. Governor Jerry Brown hasn’t said what he plans to do with it, and those same deep-pocketed telco and cable lobbyists are working his office, too.

The deadline for a decision is 30 September 2018.