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California Imposed Its Own ‘Net Neutrality’ Law. The Feds Aren’t Happy About It.

The Justice Department is suing to stop the state’s restrictive new internet law.

|||Embe2006/Dreamstime.comEmbe2006/Dreamstime.comCalifornia's blue state rebellion against President Donald Trump has spread to internet regulation.

The U.S. Department of Justice filed a lawsuit this week against California, arguing that the state's new law—which will strictly regulate the business practices of AT&T, Comcast, T-Mobile, and other internet providers if allowed to take effect—is "part of a pattern of recent actions by the state that purport to nullify federal law."

"Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy," Attorney General Jeff Sessions said in a press release. "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."

For the Trump administration, asking the courts to quell California's incipient revolt against federal authority is becoming something of a habit. In March 2018, the Justice Department sued Sacramento over laws aimed at protecting illegal immigrants, saying a trio of state laws impermissibly prevent federal immigration officers from doing their jobs. A month later, in April 2018, the Justice Department sued to block a state law that attempted to give California veto rights over federal land sales. Environmental activists had claimed that Californians would see "public lands sold off to oil and mining interests" otherwise.

Clashes are also underway over offshore drilling and fuel economy standards. Presumably, Sacramento bureaucrats aren't delighted with President Trump's plan to undo some of his predecessor's rules regulating greenhouse gas emissions either, though as a practical matter it seems unlikely to impact the state very much.

The latest revolt from the epicenter of the anti-Trump resistance is being called a "Net neutrality" law, S.B. 822, which Democratic Gov. Jerry Brown signed on Sunday. Unless blocked by a court, it will take effect in 2019.

In reality, though, S.B. 822 is far more restrictive than the net neutrality rules that progressive activists have been agitating for on the federal level. The state law prohibits "paid prioritization" of network traffic, restricts exempting internet traffic from a customer's data usage allowance, and requires "application-agnostic" network management procedures. It applies not only to wired broadband, but to wireless providers as well.

Supporting S.B. 822 is the usual assortment of activist groups, including the Electronic Frontier Foundation, American Civil Liberties Union of California, California Labor Federation, Consumers Union, Free Press, NARAL Pro-Choice California, and Public Knowledge. Opponents include AT&T, the California Chamber of Commerce, CenturyLink, Frontier Communications, Sprint, and Verizon.

Under President Barack Obama, the Federal Communications Commission approved Net neutrality regulations—albeit much narrower than California's approach—by a 3-2 party line vote in 2015.

But, as many Democrats discovered to their dismay, federal regulations imposed by a 3-2 party line vote can be eliminated the same way. That happened after Donald J. Trump won the presidency in 2016 and the FCC commissioners flipped to a Republican majority. In 2018 the FCC voted 3-2 to return to its long-standing policy of taking a hands-off approach toward regulating broadband providers.

The problem for California is that the FCC's 2018 regulations are explicitly designed to prevent this kind of regulatory adventurism by state governments. They expressly preempt "any state or local measures that would effectively impose rules or requirements that [the FCC] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service."

Yet as Barbara van Schewick, a professor at Stanford law school, has argued: "According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself." Other states are paying close attention.

Meanwhile, California has filed a separate legal challenge to the FCC's 2018 rules. That case is now before the U.S. Court of Appeals for the District of Columbia Circuit, with oral arguments scheduled for February 1, 2019.

Fortunately, there's no evidence that broadband providers are blocking or censoring websites (there's rather more evidence that social networks are doing that) or engaging in other dodgy behavior. If they are, the Federal Trade Commission has the authority under existing law to put a stop to it. But suggesting that President Bill Clinton's laissez faire approach to broadband regulation was the right approach, and that Trump is wise to continue it, isn't exactly a popular rallying cry for #TheResistance in California today.

Photo Credit: Embe2006/Dreamstime.com

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  • esteve7||

    See I'm old enough to remember.... 3/4 years ago, when they said oh no, we need net neutrality, because like comcast is like an evil company, and they could FILTER what content you see! They could totally like block what news sites you go to, etc.

    Same leftist now is happy with and wants more censorship by social media companies, and is happy with and wants more of coordinated deplatformings of people they don't like.

  • Cynical Asshole||

    They've never had a problem with censorship so long as the "right people" are the ones being censored. And many people's arguments in support of Net Neutrality that I recall seeing was more "I shouldn't have to pay more for muh Netflix" than anything else.

  • VinniUSMC||

    No, the argument is "I pay ISP for internet at X/Y/Z speed/bandwidth/whatever-measure, and I pay Netflix to deliver content, so I expect ISP to deliver the content that I have A) paid Netflix for and B) paid ISP to have delivered".

  • JesseAz||

    Net neutrality doesn't care you pay for Netflix. Your grandma's cats in hats blogs deserves the same bandwidth as Netflix under NN. Instead of Netflix being able to pay your isp to cache it's most popular titles near major iso switches to improve streaming functionality, they can't. Your grandmother's blog has to have the same reliability as Netflix. This is why net neutrality is idiotic. It removes the capability to fund and research ways to make high bandwidth entities pay and find ways to improve customer experience.

  • Angelique||

    The problem with privileging Netflix against grandma's cat blog is that it discriminates against small businesses which are just starting in favor of large established companies

    It is not just gradma's blog. It is farmers wishing to sell directly without intermediaries. It is a new product developers seeking to reach new customers.

    Sure it is great for Netflix. But what about the future Netflixes which face extra hurdles?

  • Greg F||

    the argument is "I pay ISP for internet at X/Y/Z speed/bandwidth/whatever-measure


    Actually you don't. I suggest you consult your ISP's TOS.

  • Wise Old Fool||

    Wrong! Net neutrality is about doing what you want on the internet and the pipes between your house and websites/nodes being pipes and not dams where the local rancher can say "I'll let a trickle through, but if you want some more so you're going to have to pay for premium protection money on top of the regular protection money". There is no arguing that fact. Nothing leftist about it. I would think left or right you would get the fucking service you are paying for. This is just another way for them to squeeze more money out of you. It's bullshit.

  • Greg F||

    Net neutrality is about doing what you want on the internet and the pipes between your house and websites/nodes being pipes and not dams ...


    Your a technically ignorant old fool. Those "pipes" are not infinite and the analogy of "pipes" falls apart when a network becomes congested.

  • rudehost||

    "Net neutrality is about doing what you want on the internet and the pipes between your house and websites/nodes being pipes and not dams where the local rancher can say "I'll let a trickle through, but if you want some more so you're going to have to pay for premium protection money on top of the regular protection money"

    Ummm if your ISP wanted to charge you more couldn't they just ... you know raise rates and charge you more? It's almost as if your talking point is flawed.

  • Red Rocks White Privilege||

    The fact that you compared Net Neutrality to disputes over water rights shows how utterly ignorant NN supporters are of both.

    I would think left or right you would get the fucking service you are paying for.

    Just another shitlib who doesn't understand how data transport works. If you honestly think you're going to get 1 GB up/down at all times, you are truly stupid person.

  • Cynical Asshole||

    But suggesting that President Bill Clinton's laissez faire approach to broadband regulation was the right approach, and that Trump is wise to continue it, isn't exactly a popular rallying cry for #TheResistance in California today.

    Trump: literally Hitler
    Bill Clinton: almost literally Hitler.

  • damikesc||

    Ahh, butt is upset that the ICC is being used for legitimate interstate commerce for once.

  • damikesc||

    You very much are.

    Dont whine that you doing so is noticed.

  • damikesc||

    Youre the one demanding CA be allowed to set internet policy for the country, son.

  • rudehost||

    Says the guy defending a massive regulatory regime in CA.

  • Gilbert Martin||

    What about the right of states not to have their regulation of health insurance preempted by Obamacare?

    More liberal hypocrisy at work!

  • JesseAz||

    Congrats on proving you have no fucking idea how the internet works spb

  • CDRSchafer||

    What California needs is progressive nut neutering. Forbid the entire state to breed so in 50 years their idiotic progressive ideas will die out. Just tell them it's a mandatory pro-choice program and they should be down with it.

  • Eric||

    What's the point? Libertarians should excitedly await for California's predetermined demise. It's really the only possible outcome. I'd give CA one maybe two years (depending upon how quickly Trump can MAGA) before it and West Virginia intersect eachother in economic output.

  • damikesc||

    Because TX or GA "regulating a woman's womb" isn't INTERSTATE commerce, you insufferably moronic genetic mistake.

    Trying to control the internet, minimum, is interstate commerce.

  • ||

    You're missing the point about states rights, you dipshit.

    I can't fathom that he missed the point. You're not that clever.

  • Rossami||

    Nope, not missing the point at all. States' rights do not extend to regulation of inter-state commerce. It's right there in the Constitution.

  • damikesc||

    Yes, telling Amazon that they have to something wouldnt impact other states. Perish the thought.

  • damikesc||

    "Team Red" has argued states can nullify federal laws?

    "Team Red" fought and won a war against "Team Blue" over that issue.

  • Lester224||

    Several states (Alabama, Alaska, Colorado), insist that both parents give permission for a minor to have an abortion in state or in another state. This would make it a crime for one parent to take their under-18 yr old out of state for an abortion. This even goes if the parents are divorced or if one of the parents (I guess it would have to be the male one) has impregnated the minor. Most states have some sort of judicial waver for parental consent (including these which require both parents) but getting that waiver depends on having a sympathetic judge. What are the odds of that in Alabama?

    Other states have rules that prohibit buying abortion inducing drugs (all of which are only effective in the first trimester) from out of state. I'd say that's an interstate commerce restriction. The definition of an "abortion inducing drug" could conceivably include Plan B, although I don't know what's going on in state legislatures to define this.

  • Wise Old Fool||

    Which is also fucking stupid. The parents don't have to take care of the baby for the rest of their lives; unless they sign a legal agreement to make that possible it's utter fucking bullshit.

  • damikesc||

    Wired?

    Well, i guess SOMEBODY has to read them.

  • Wise Old Fool||

    Lots of people read their site. Time to put down your paper news source grandpa.

  • Gilbert Martin||

    "Step by step, the FCC is working to undermine cities' abilities to create municipal fiber networks of any size, while doing everything it can to keep the status quo in place. "

    So the cities who pay no federal , state or local income taxes want to compete with private entities that do have to pay them.

    No problem. Just exempt those private entities from paying those taxes so they've both be on the same level playing field and THEN let them compete against each other.

  • Greg F||

    So the cities who pay no federal , state or local income taxes want to compete with private entities that do have to pay them.

    And yet they are financial disasters.

    The data contained in this study are sobering. Municipal fiber is not an option for the 86 percent of the country that is not served by a municipal power utility. Of the 20 municipal fiber projects that reported the results of their municipal fiber operations separately, eleven generated negative cash flow. Unless operations improve substantially, these projects cannot continue to operate over the long haul, let alone cover the capital costs needed to establish operations. Of the others, five are projected to take more than 100 years to recover their costs, and two others are projected to take over 60 years. Only two are on track to break even, and one of those is based on a highly urban, business-oriented model that few other cities are likely to be able to replicate, and the other includes data from two years of stronger performance when it offered only DSL service.
  • ||

    Damn. I knew that the Trump admin. was Authoritarian, but this is going a step towards N. Korea and China. Mind you, it's a small step in that direction, but a step in that direction all the same. No wonder 50-somthing percent of Americans support secession.

  • Greg F||

    Wired Magazine


    Where technical ignoramus go.

  • buggle||

    Net Neutrality is protected and supported by the first amendment, plain and simple.

  • DarrenM||

    Wrong. Whether it's a good idea or not, NN is not "protected and supported" by the first amendment.

  • buggle||

    I appreciate your opinion. The first amendment protects it and a free and open Internet allows you to express it. The internet is THE communications tool of the 21st century. Almost all modern communication methods occur through and because of it. Therefore, logic suggests that a free and open internet, and thus net neutrality, IS protected by the first amendment.

  • Greg F||

    Still wrong buggle. The first amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


    The first amendment is a restriction on government, not on private businesses. The Internet is a collection of interconnected privately owned networks and is not part of the government. Therefore the 1st amendment does not apply.

  • Red Rocks White Privilege||

    Net Neutrality doesn't have anything to do with the First Amendment, because its entire premise is based on ignorance of data transport rules.

  • Wise Old Fool||

    Not really, and I support it NN. It is not about the 1st amendment, other than maybe the spirit of it. It's for the "general welfare" and it's clear and evident that we can't allow 2 or 3 companies to control what can be on the internet. It's an oligopoly situation, where they are abusing their oligopoly. There are reasons we have trust busting laws.

  • John B. Egan||

    Ironically the FCC and Trump's administration probably castrated itself in this matter and can only sue, and delay, but probably no longer has the authority to block California's Net Neutrality Act.. (Which is law in every other developed nation BTW..) ::

    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.

    "An agency that has no power to regulate has no power to preempt the states, according to case law," Stanford Law professor Barbara van Schewick said in a statement to The Verge.

    "When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers," van Schewick said. "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 protections."

    The courts have so far agreed. Charter Spectrum recently tried to use this FCC preemption language to dodge a New York state lawsuit over substandard service and speeds. But a court ruled that the FCC's preemption language doesn't nullify a state's rights to protect consumers from ISP "fraud, deception and false advertising."

  • Red Rocks White Privilege||

    I guess you missed the part where the FTC had its authority restored to bring lawsuits against common carriers with the revocation of the Title II designation.

    Not a surprise that a Calitard like you would fail to recognize that.

  • Number 2||

    The "telecom industry legal expert" you cite forget the concept of field preemption:

    "Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to "occupy the field" in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated."

    To the extent the Federal Communications Act "preempts the field" and Congress intended to leave "net neutrality" unregulated - as exemplified by leaving the FCC without authority to impose it by regulation - State net neutrality laws are preempted.

  • ||

    On the one hand, Net Neutrality Rules restrict the rights of the private internet companies to make commercial decisions. On the other hand, the Federal Government has no right to dictate the laws California can or can't pass. Either way, the enemies of America (Russia, China, N. Korea, Iran, Ext...) will use this argument to further divide and weaken our country.

  • ||

    On an unrelated subject, who thinks America should be broken up into a bunch of smaller countries with an economic and defensive pact, like a cross of the EU and NATO?

  • Red Rocks White Privilege||

    Nah, break off the left coast, Chicago, and Massachusetts, declare them hostile nations, and then nuke them.

  • Wise Old Fool||

    nah cut off any funds flowing from these states to the red states and see how long it takes before they realize they're doing something wrong.

  • Red Rocks White Privilege||

    cut off any funds flowing from these states to the red states

    Sounds like an invitation for a 99% tariff on the entertainment and tech industries!

  • I am the 0.000000013%||

    Absolutely not. We just need to stop expanding the role of the federal government.

    If authoritarians had any sense they'd all step back from the brink after witnessing what Obama/Trump has done/been doing.

  • Mezzanine||

  • Red Rocks White Privilege||

    Those states also have high income inequality rates compared to red states, but whatevs.

  • macsnafu||

    Shouldn't federalism mean that California is allowed to have more restrictive laws than the Federal government if they want them? The previous examples mentioned were different because they specifically involved the federal government or federal agents. But this one is a general law on companies that do business in California. If the citizens of California are against it, let THEM tell the California politicians that.

    Besides, why should the feds protect California from itself?

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