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California passes its tough Net Neutrality bill—and the DOJ immediately sues

Heather Parry

By Heather Parry

04 October 2018

This week, California signed into law the strongest Net Neutrality bill in the country, after a long and often tense battle to bring in legislation to replace the Federal Communication Commission (FCC)’s own, now abandoned, Net Neutrality rules.

Despite an apparent FCC prohibition on state Net Neutrality laws, California has not only replicated the commission’s legislation but has actually designed theirs to go further and be much more tough. The new law has the backing of consumer groups and individuals alike.

The legislation, like the FCC’s original rules, prevents internet service providers (ISPs) from blocking or throttling user’s connections to services or sites that are in competition with those offered by an ISP.

It also regulates “zero-rating” practices and interconnection interference. As the state which is home to many of the US’s largest tech companies, California adopting this legislation is significant.

In response, within hours of the bill passing, the federal government sued California in an attempt to block the legislation from becoming law, which is set to happen in early 2019.

The lawsuit claims that the California bill attempts to “unlawfully imposes burdens on the Federal Government’s deregulatory approach to the Internet”.

Under the Constitution, states do not regulate interstate commerce—the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order. We will do so with vigor. We are confident that we will prevail in this case—because the facts are on our side.

However, this may not be the case. The lawsuit is built on shaky ground; namely, some wording in the FCC’s repeal of its own Net Neutrality laws that “pre-empts” states from writing their own version of the legislation.

But when the FCC repealed its rules, it also removed its own ability to regulate states’ actions around Net Neutrality.

As Stanford Law professor Barbara van Schewick told The Verge

When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers. That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protection.

This isn’t stopping the Department of Justice from going ahead with their lawsuit, however—and it isn’t stopping some vocal supporters from making their opinions known.

FCC Chairman Ajit Pai released a statement as soon as the legal action was announced, saying:

I’m pleased the Department of Justice has filed this suit. The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area.

I look forward to working with my colleagues and the Department of Justice to ensure the Internet remains ‘unfettered by Federal or State regulation,’ as federal law requires, and the domain of engineers, entrepreneurs, and technologists, not lawyers and bureaucrats.

Despite Pai’s comments, the California legislation is largely popular with consumers and lawmakers.

California seems to be leading the way in terms of tech regulation, as it is also said to be looking to bring in its own state privacy laws. Whether this legal attack has any teeth only remains to be seen.

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