California’s net neutrality law needs a little bit of help from its tech friends

22 October 2018 by Steve Blum
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Only one group jumped in as a friend of the court – an amicus curiae – to help the federal justice department, and lobbyists for AT&T, Comcast, Charter Communications and Frontier Communications in their quest to kill California’s new network neutrality law. One point made – that California’s Internet law won’t stop at the Nevada line – can only be answered with technical expertise.

The friend was, of course, another group of lobbyists, which rather grandly calls itself the Chamber of Commerce of the United States of America. It’s a broadly-based D.C. lobbying front organisation that claims to not only represent its 300,000 members, but also “the interests of more than 3 million companies and professional organisations of every size, in every economic sector, and from every region of the country”.

Well then.

Leaving aside the question of whether all 3 million of those enterprises think net neutrality rules are against their interests, it makes its arguments with livelier language than the justice department’s lawyers or those representing AT&T, Comcast, Charter, Frontier et al did. It’s also quite a bit shorter, so it makes a couple of the telecom industry’s arguments more clearly than its own lobbyists or its friends in the Trump administration. In doing so, it also highlights their weaknesses.

The chamber’s filing says California’s net neutrality law is preempted by the Federal Communications Commission’s decision last year to walk away from the job of regulating Internet service terms, and that it’s unconstitutional because it has the practical effect of setting broadband service rules for the entire country.

The preemption argument is circular: the FCC says we don’t regulate Internet service, so we preempted state laws; California senate bill 822’s advocates say you can’t preempt what you don’t regulate. It’ll be up to the judge in the case – John Mendez – to decide where to step off that merry-go-round.

The extraterritoriality of California’s law is a more straightforward question. California can’t regulate Internet service in, say, Nevada: if the effect of the law is to impose new rules there, then it will probably be thrown out. So the challenge for its defenders will be to show how ISPs can reasonably follow different service management practices in different states. That’s going to take more tech and business savvy than the man charged with leading California’s defence – attorney general Xavier Becerra – has in house.

Let’s hope he can find some amici of his own.