Weak net neutrality language offered to save California assembly’s “integrity”

by Steve Blum • , , , ,

Network neutrality rules have another chance in Sacramento tomorrow. The California assembly’s privacy and consumer protection committee takes up senate bill 822, after it was eviscerated – to use the author’s verb – by the communications and conveyances committee last week. Anything might happen, but the cards on the table now point toward modest and rickety repairs, rather than complete reversal of the damage.

The privacy and consumer protection committee published its staff analysis of the bill, which suggested simplifying it by referencing the now-repealed 2015 net neutrality decision by the Federal Communications Commission, and telling Internet service providers to comply with the rules it laid down – no more, no less. That would be consistent with what the communications and conveyances committee chair, assemblyman Miguel Santiago (D – Los Angeles), claimed he was doing. He was actually trying to gut SB 822 completely, which he and his wingmen – assemblymen Evan Low (D – Santa Clara) and Eduardo Garcia (D – Riverside) – succeeded in doing, with help from most of the other committee members, republican and democrat alike.

But taking Santiago at his word is a convenient fiction for the privacy and consumer protection committee staff, who diplomatically wrote

In order to preserve the integrity of the institution and the committee hearing process, it is improper for one committee to wholly undo the exact amendments of the prior committee.

Integrity might seem like a poor choice of words in this context. Santiago, Low and Garcia are reliable friends of AT&T, and Wednesday’s committee hearing was an exhibition of pure political muscle.

There are problems with simply incorporating the defunct Obama-era FCC net neutrality decision by reference. It was crafted by then-FCC chair Tom Wheeler, who saw himself as an active referee on the telecoms playing field. Rather than try to write detailed rules, Wheeler laid out three “bright line” principles – no blocking, throttling or paid prioritisation – and left the details to be decided by commissioners as the game progressed. For example, zero rating wasn’t explicitly banned, although the FCC was moving in that direction. Although the FCC’s decision is chock full of policy analysis and examples, it’s weak on thou shalts and thou shalt nots. It’s a very poor basis for enforcement by courts that interpret and apply laws, rather than make policy as the FCC does.

So the California legislature has a choice. It can pass an unenforceable bill or it can add enough detail and depth for courts to make meaningful rulings, as SB 822 tried to do. Or it can create its own referee, which seems to appeal to no one.

It’s a safe bet that, as he did last week, SB 822 author, senator Scott Wiener (D – San Francisco), will continue negotiations behind the scenes, right up until tomorrow afternoon’s hearing. It’s far from certain, though, whether he’ll have any more success.