California net neutrality bill bends to telco, cable wishes

23 April 2018 by Steve Blum
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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.