California Enters the Net Neutrality Fray to Fill a Gap in Consumer Protection

On Sunday evening, California Governor Jerry Brown signed Senate Bill 822 into law, enacting a strong set of protections for the state’s broadband subscribers and scoring a victory in the overall fight to protect net neutrality. Unfortunately, the Trump Administration is once again attempting to block net neutrality protections, and the U.S. Department of Justice immediately filed suit to strike down the law. DOJ claims that the FCC’s deregulatory approach overrides state laws that replace any parts of the now-repealed Open Internet Order. However, the FCC, in justifying its repeal, claimed that it has no legal authority to regulate ISPs. It remains to be seen whether an agency claiming no authority to regulate may still prevent states from putting consumer protections in place. What is clear is that strong consumer protections are both wanted and needed to preserve an open internet.

The California law is largely a reinstatement of the rules in the FCC’s 2015 Open Internet Order, but with a few extra provisions to address certain forms of “zero-rating” and ISPs’ ability to leverage their position to influence interconnection agreements with companies like Netflix. ISPs can be thought of as gatekeepers because they control your ability to connect to the internet, and have the power to dictate which parts of the web you access and at what speed. In the absence of federal protections to prevent ISPs from abusing their position as gatekeepers, states have stepped in on behalf of consumers. California and many other states began efforts to supplement consumer protections for broadband in the wake of the FCC’s repeal of its own net neutrality regulations. California followed Oregon, Vermont, and Washington, in securing legislation aimed at protecting consumers from ISPs’ discriminatory or anti-competitive practices. Governors of six states have signed executive orders with the same intent. Many other states are contemplating legislation.

On a different front in the quest to protect net neutrality, 22 state attorneys general, including California’s, filed suit earlier this year challenging the FCC’s rule rollback, as well as the FCC’s claimed authority to preempt state consumer protection laws. CDT is also among the petitioners asking the D.C. Circuit to invalidate the so-called Restoring Internet Freedom order.

The fastest way to protect net neutrality around the country is the ongoing effort to use the Congressional Review Act (CRA) to reverse the FCC’s repeal and reinstate the 2015 Open Internet Order. Even though net neutrality consistently polls as a popular issue across the political spectrum, actually subjecting ISPs to a few rules remains politically divisive in Washington, D.C. The discharge petition to use the CRA passed the Senate in a narrowly bipartisan vote, but a few dozen more signatures are needed in the House before the end of the year.

California’s law (and the voluminous press coverage) should be clear signals to Congress: Strong net neutrality protections are a must, and people are paying attention.