Three U.S. senate democrats are calling out the four major mobile carriers on their throttling and prioritisation policies. Senators Edward Markey (D – Massachusetts), Richard Blumenthal (D – Connecticut), and Ron Wyden (D – Oregon) sent joint letters to the CEOs of AT&T, Sprint, T-Mobile and Verizon, asking them to explain results from an Internet traffic testing app that indicate they’re deliberating slowing some traffic down…
We write to express our concern that mobile carriers may be inappropriately throttling and prioritizing internet traffic from common mobile apps without the knowledge of their customers. Through the use of the app Wehe, researchers recently identified numerous instances of cellular providers throttling video and communications services.’ Such practices would violate the principles of net neutrality and unfairly treat consumers who are unaware that their carriers are selecting which services receive faster or slower treatment…In light of this study, we write to ask you about your policies regarding the treatment of internet traffic.
The companies are not obligated to respond and, given that the U.S. senate will remain in the control of republicans, the threat of a hearing or other compulsory action isn’t readily apparent. But it could be embarrassing, and it’s a good bet that the three senators will make the most of that opportunity, should it arise.
On the other hand, if they do respond, it’ll be interesting to see what they say. And particularly interesting if AT&T CEO Randall Stephenson cops to throttling the three video services – YouTube, Netflix, and NBC Sports – that the letter calls out. His chief staff lobbyist in Sacramento, Bill Devine, claimed that AT&T does not “degrade Internet traffic” during hearings on senate bill 822 – California’s net neutrality law – earlier this year. He didn’t stick to the truth in other respects; the question now is whether his boss will try to bluff it out too.
With some exceptions, SB 460 would have required state and local agencies to buy broadband service only from providers that abide by net neutrality principles. Given that it’s the big telecoms companies – AT&T, particularly, but also Comcast, Charter and Frontier – that dominate the government services market, it would have been a powerful incentive for them to stick to those rules.
It’s also much safer ground for state-level action. SB 822 is on hold, following a federal court challenge, and it could be years before it has any effect, even if it survives the legal process. But SB 460 was about public procurement policy, and that’s something that federal agencies, particularly the Federal Communications Commission, don’t have much, if any, control over.
The FCC’s top staff lawyer, general counsel Tom Johnson, conceded as much during a recent appearance at a Washington, D.C. event, according to a story in Politico…
Although the FCC believes it can override state net neutrality laws like the one in California, it hasn’t yet settled the question of whether it can challenge efforts to make net neutrality a requirement for state government contracts, Johnson said. “The commission has not taken an explicit position,” he said, adding the FCC hasn’t sought to intervene in such procurement-related actions for that reason.
De Leon never seemed to have a particular passion for net neutrality. He backed several bills aimed at high profile issues this past year, as he tried to gain some traction in his ultimately futile attempt to beat Diane Feinstein in the race for her U.S. senate seat. He had a hard time articulating a coherent argument for his bill; during one committee meeting, Wiener had to step in and explain why both bills were needed.
SB 460 was necessary because SB 822 was, and is, resting on shaky legal ground. With it off the table for the foreseeable future and SB 460 trashed, California will end 2018 exactly the way it began it: with no net neutrality guarantees at all.
The one exception is senator Kevin de Leon (D – Los Angeles). He ran out of time on California term limits and challenged U.S. senator Diane Feinstein. He’ll be unemployed at the end of the month, having lost to Feinstein, 46% to 54%. De Leon introduced one of two network neutrality bills that moved through the legislature this year, senate bill 460. Senator Scott Wiener (D – San Francisco), carried the other one, SB 822, which was a much more thoroughly thought out net neutrality measure.
SB 822 passed the legislature, was signed by governor Jerry Brown and was then put on hold by attorney general Xavier Becerra, in response to a court challenge by telecoms lobbyists and the Trump administration. SB 460 was trimmed back, and would have required state and local agencies to only buy broadband service from providers that abide by net neutrality principles. It was an important bill nevertheless, because it had a better chance of withstanding lawsuits. Despite that – or perhaps because of it – SB 460 died as the legislative session came to an end in August.
Wiener didn’t stand for election this year – his current term ends in 2020. But other key players in the net neutrality struggle did, and they were all reelected by substantial margins, whether or not they were helpful to the cause. Becerra beat his republican opponent by 61% to 39%. Assemblyman Miguel Santiago (D – Los Angeles), who tried to kill the net neutrality bills in the committee he chaired, walked home with 71% of the vote in his reelection race. His two wingmen in that attempt – assemblymen Eduardo Garcia (D – Imperial) and Evan Low (D – Santa Clara) – also won landslide victories.
So did assemblyman Rob Bonta (D – Alameda), who whomped his republican opponent 87% to 13%. Bonta deserves much of the credit for saving both Wiener’s and de Leon’s net neutrality bills in the assembly. He brought the warring sides together, after Santiago was slammed by online activists for his defence of big telecom interests.
Senator Ben Hueso (D – San Diego) will be back, too. He also won a lopsided contest against a republican challenger by 62% by 38%. Hueso sat out the net neutrality fight, but as chair of the senate’s primary telecoms committee, he has also been a good friend to AT&T, Comcast, Charter and the rest. Last year, he carried and vigorously advocated for senate bill 649, which would have given telecoms companies the right to attach wireless equipment to city and county-owned street light poles for below market, bargain basement prices.
Charter Communications, Comcast, AT&T and other big, monopoly model broadband providers are taking the State of Vermont to federal court, accusing it of flouting the Federal Communications Commission’s keen desire to remove any limits on their behavior. Vermont legislators passed a law earlier this year that prohibits state and local agencies from buying broadband service from companies that don’t abide by the network neutrality principles adopted by a democratic majority FCC in 2015 and overturned last year as republicans took over control of the agency.
They’re making pretty much the same arguments that they’re making in California, where their lobbying front organisations are also trying to kill a newly enacted net neutrality law. The two laws are very different, however. Vermont’s is similar to senate bill 460, which was killed by the California legislature in August. It, too, would have required state and local governments to only buy from net neutrality compliant Internet service providers. The bill that did pass in California – SB 822 – aims to reinstate those rules across the board. It’s on shakier ground than Vermont’s law.
It’s not unusual for state, and even local, governments to try to sway commerce through their purchasing power, and pursue policies that oppose federal government actions. I do business with a lot of cities in California, and it’s not uncommon to be asked to sign pledges not to, say, manufacture nuclear weapons or do business with “morally repugnant regimes”.
As a general rule, states are free to spend their money and govern their own conduct and that of local governments as they fit, although there are limits. The claim that the FCC’s declaration that it was preempting any state net neutrality laws applies to state procurement policy will run into the same problem that killed Obama administration attempt to override state limits on municipal broadband: congress didn’t clearly say it could. An Ohio-based federal appeals court ruled that…
This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation. The FCC relies upon [section] 706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement.
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.
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.
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”.
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.
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.
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.
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.
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.
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.