California Net Neutrality Backers Claim Victory, but There's a Huge Catch

California kills the FCC's deeply unpopular repeal, but it's not over yet.

Flickr / marcoverch

As goes California, so might the rest of the country — which is why the Department of Justice is getting involved.

No sooner had California Governor Jerry Brown signed SB 822 into law on Sunday, giving the state the most powerful internet consumer protections — broadly known as net neutrality — in the country, than the federal government filed a lawsuit to stop the law from going into effect on January 1, 2019. The fight for net neutrality in California continues.

At issue is the DOJ’s opinion that the law would break with the Constitution, which declares that no state shall pass commerce laws that extend into another state. Because the internet has become mobile, net neutrality protections on a California resident’s data plan would carry over to a state without those protections. (Not to mention, there might be a wave of people setting up data plans in a state that has better net neutrality laws than the state in which they actually live.)

When the state Senate approved net neutrality protections on August 31, internet service providers interested in selling a tiered internet faced an uncertain future that had but one certainty: The federal government would sue to stop the law from going into effect, which is what happened on Sunday night after Brown signed the bill.

The Future of SB 822 and Net Neutrality in the USA

Now that Brown has signed SB 822 into law, setting up the legal challenge from the DOJ, other states may wait out the decision before moving forward with their own laws, lest they be tagged by a Trump appointee as passing “illegal and extreme” laws.

“Under the Constitution, states do not regulate interstate commerce — the federal government does,” U.S. Attorney General Jeff Sessions commented on Sunday. “Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy.”

SB 822 will go down in history as the public’s first sharp rejoinder to the FCC’s deeply unpopular repeal last year.

The National Conference of State Legislatures, which tracks state policy, reported in August that 30 states had net neutrality proposals on the books.

California Would Have the Strongest Internet Protection Laws in the USA

The victory creates even tougher consumer protections than the Obama-era ones the FCC repealed: It bans cell phone companies from offering a “zero rating” feature to plans that would allow customers to stream music (or other media) at no cost to their data plan, effectively freezing out the competition. Not even the Obama-era FCC rules offered that protection.

A Net Neutrality Domino Effect for Other States?

ISPs have little interest in creating different streaming plans by state. It’s a logistical and technological nightmare. If SB 822 defeats the legal challenge by the DOJ, someone in California will have all their internet content load at the same speed. And, if that person crosses state lines into Nevada, where there are no net neutrality protections, the streaming speeds might be changed to fit whatever other pricing scheme has been sold to the customer there. In short, it’s complicated.

A patchwork of different laws by state is never conducive to operating a streamlined business, but it is often the result of inadequate (or just bad) federal policy. But the mobility of the internet has folded a new wrinkle into how laws are made in states for an increasingly mobile population.

In August, Massachusetts Senator Ed Markey and California Congresswoman Anna Eshoo led a coalition of their colleagues (27 Senators and 76 members of the House) in filing an amicus brief to the D.C. Circuit Court of Appeals, urging it to overturn the FCC’s decision.

On Sunday, Markey praised the California bill’s passage into law this way: “This is a huge victory for the free and open internet. The internet warriors fighting to save #NetNeutrality will not be stopped. Thank you to the coalition in California and around the country who made this win possible.”

The congressional appeal to the court involves a case being brought by the non-profit Mozilla Corporation, makers of the privacy-focused Firefox internet browser. Other petitioners in the Mozilla case against the FCC include Vimeo, the State of New York, Etsy, and the Santa Clara County Central Fire Protection District, which alleged Verizon throttled wildfire fighters’ internet speeds while they fought the wildfires ravaging California. Also backing the lawsuit are top officials in 27 cities, reports GeekWire.

Though the battle for net neutrality is being fought on many fronts, its backers in California are declaring victory — for now, at least.

“Today marks a true win for the internet and for an open society,” said state Senator Scott Wiener in a statement after the bill was signed into law on Sunday.

It seems that maybe Wiener shouldn’t claim the win just yet, though.

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