California net neutrality law can survive federal challenge, lawmakers told

25 April 2018 by Steve Blum
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The California senate’s judiciary committee approved, on a party line vote, a proposed net neutrality law, after hearing that it was at least defendable against the inevitable court challenges that cable and telephone companies would file. Senate bill 822 would define blocking, throttling, paid prioritisation and paid or provider-specific zero rating as unfair competition, and enforce those rules via civil lawsuits.

The big question was whether a Californian net neutrality law would withstand the Federal Communications Commission’s declaration that it was preempting state level broadband regulations. Barbara van Schewick, a law and computer science expert at Stanford University who helped draft the bill, explained to the committee why she thinks it will…

I believe this bill is on firm legal ground with respect to the preemption. The case law shows very clearly that an agency only has authority to preempt if it does have authority to regulate…In 2017 the FCC systematically dismantled all of its sources of authority that would allow it to adopt net neutrality rules. They got rid of Title II, that was a firm source of authority. They got rid of section 706, which in 2014 the Verizon court had said that’s a source of regulatory power over the ISPs. And the only thing that’s left is Title I. Unfortunately, that does not give the FCC authority to adopt net neutrality rules, as we’ve known since 2010 when the D.C. circuit struck down the FCC’s order against Comcast for interfering with applications…saying very clearly, you, FCC don’t have ancillary authority to adopt net neutrality regulations under Title I. And that’s why the FCC in its own order in 2017 concludes and says, you know, we’re not just determining that adopting net neutrality is bad policy. Even if we wanted to we now have no authority left to do this.

The only disclosed change was a clarification regarding who could sue ISPs that break the rules – it’s not just the California attorney general. Attorneys for local agencies could go to court. So could “a person who has suffered injury in fact and has lost money or property as a result of the unfair competition”. Or, in practice, a contingency fee lawyer representing such a person.

The usual lobbyists showed up to oppose the bill, including those representing AT&T, Frontier Communications, and the front organisation for Charter Communications, Comcast, Cox Communications and other cable companies, the California Cable and Telecommunications Association.

The next stop for SB 822 is the senate appropriations committee.