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.
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