California’s law protecting net neutrality, one of the most robust in the country, has a second chance after a federal appeals court ruling this week on net neutrality, a legal principle that advocates say keeps Internet providers from favoring some services over others.
The court on Tuesday upheld the Federal Communications Commission’s repeal of Obama-era net neutrality rules, but it didn’t block the ability of states to make their own laws that favor net neutrality. California passed a net neutrality law last year.
California officials will still have to prove in court that their law doesn’t directly conflict with federal regulations — and experts aren’t confident it will survive.
State officials nonetheless celebrated over the latest development in a years-long war over Internet autonomy.
“It was a big win,” said state Sen. Scott Wiener, D-San Francisco, who sponsored the bill last year. “Net neutrality is about each of us deciding where we’re going to go on the internet, as opposed to corporations telling us where we have to go. This is about people being able to decide what websites they go to for their news, to go shopping, to engage in the community, as opposed to corporations like AT&T and Verizon manipulating us to go to favored websites.”
Wiener said that without net neutrality, telecommunication companies could enter into agreements with companies to promote or improve access to their sites or boost content that they own through subsidiaries.
“The last thing we need is big megacorporations making decisions for us,” Wiener said.
In 2017, the FCC repealed 2015 neutrality rules that barred Internet providers from blocking, slowing down or charging Internet companies to favor some sites or apps over others.
The FCC’s website says its repeals removed unnecessary regulations, thus promoting broadband investment and enhanced transparency requirements for Internet service providers. FCC Chairman Ajit Pai said in a statement Tuesday that consumers have seen 40 percent faster speeds and millions more Americans have gained access to the Internet since the rules changed.
“Today’s decision is a victory for consumers, broadband deployment, and the free and open Internet,” Pai said in the statement. “The court also upheld our robust transparency rule so that consumers can be fully informed about their online options.”
Back in 2017, California immediately fought the FCC’s repeal. Last year, state Attorney General Xavier Becerra joined a coalition of 22 attorneys general who sued.
“Today’s decision blocks the FCC’s effort to preempt state net neutrality laws through regulation,” Becerra said in a statement Tuesday. “This decision also underscores the FCC’s failure to adequately consider public safety concerns, or impacts on low-income Americans, when it issued this ill-conceived rule.”
The court’s ruling also affirmed that the FCC should ensure that net neutrality repeals aren’t restricting access to Internet services for emergency responders and low-income users. The ruling cited testimony from firefighters in Santa Clara County who said their service was throttled during the Mendocino Complex Fire. Although that was a dispute over billing, not net neutrality, the complaints caused the court to order the FCC to look into public safety issues.
Barbara van Schewick, director of Stanford Law School’s Center for Internet and Society, said in a statement Tuesday that “today’s decision that the FCC can’t stop states from protecting their citizens online is a historic win for California and all Internet users.”
Other experts debated which FCC regulations helped or hurt the consumer market.
Gus Hurwitz, professor and co-director of the space, cyber and telecom law program at the University of Nebraska, said for companies, complying with the Obama-era regulations was “enough of a cost for them to delay connecting another 10 people in their area and their network.”
“The biggest challenge we face is broadband getting built out to more people. With all the back and forth over net neutrality over the last decade, ISPs haven’t had enough certainty to make investment decisions,” Hurwitz said.
Some doubted whether the FCC’s repeal had changed much.
“The concern about ISP blocking or throttling videos that compete with their streaming products, we really haven’t seen that and I wouldn’t expect us to see that,” said Doug Brake, director of Broadband and Spectrum Policy for the Information Technology and Innovation Foundation, a Washington, D.C., think tank.
There’s still a question about when or if California’s law will go into effect. It was put on hold after the Department of Justice and telecommunications companies sued the state, and that lawsuit was stayed while the federal appeals court decided whether national regulations could pre-empt state law.
With Tuesday’s ruling, the state law “appears to be on pretty solid ground,” but the California attorney general’s office will evaluate moving forward, a spokeswoman for the office said.
Others were more skeptical.
“There’s an easy path for California to be struck down,” Brake said, noting that Vermont was in a similar position. “I expect both of those state laws will fall pretty quickly.”
AT&T, Comcast and T-Mobile didn’t respond to requests for comment. Verizon referred to USTelecom, which referred back to a prior statement saying that “the internet is open, ISPs are investing to bring internet users the content they want, and we remain absolutely opposed to anti-consumer practices like blocking, throttling and anti-competitive paid-prioritization.”
The Associated Press contributed to this report.
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