Why feds can’t block California’s net neutrality bill

CA just passed the toughest state-level network neutrality law in the nation, and within hours, the Department of Justice sued the state to block the law from going into effect. It’s the start of a new chapter in the fight for net neutrality, as the federal government works hand in hand with the telecom industry to stop a wave of state-level net neutrality protections. But legal experts said that the effort to remove states from the consumer protection equation rests on shaky legal ground and may only buy the telecom sector time rather than rolling back the law completely.

Foreseeing state challenges to their attack on federal oversight, lobbyists for both Comcast and Verizon in 2017 successfully urged the Federal Communications Commission to include language in its net neutrality repeal “pre-empting” (read: banning) states from protecting consumers moving forward. But telecom industry legal experts say that when the FCC dismantled its own authority over broadband ISPs (by rolling back their classification of ISPs as Title II common carriers under the Telecom Act), it ironically killed any authority it might have had to tell states what to do.

While the DOJ lawsuit attempts to claim that the 1996 Telecom Act declares that internet services must be “unfettered by Federal or State regulation,” consumer advocates say they’re misrepresenting what the law actually says and conflating regulation of “the internet” with regulation of “internet access providers” specifically. “Congress created the Telecom Act created [sic] to be a joint federal-state jurisdiction law, which is why every state has its own public utilities commission, power over franchises, state pole attachment regulations, consumer protection power, and state-based ISP privacy rules,” said Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation. 

Even if the industry succeeds in winning the looming lawsuit field by 23 state attorneys general and the FCC’s 2015 rules are thrown out, it’s still unlikely that the courts will look kindly on the FCC’s shaky attempt to preempt states from passing their own rules, said Benton senior fellow Gigi Sohn, who helped craft the FCC’s 2015 net neutrality rules. “At best, (the) DOJ may be looking at a short term victory until the DC Circuit decides the merits of its lawsuit,” Sohn said. Meanwhile, “the California net neutrality law simply fills a gap in consumer protection that the FCC has willingly and happily created,” she added.