California The Latest State To Propose Its Own Net Neutrality Rules

from the states-rights...or-not... dept

As we’ve been trying to help people understand, the FCC’s repeal of net neutrality goes well beyond just killing net neutrality. The agency’s “Restoring Internet Freedom” order not only guts FCC authority over broadband providers, but attempts to shovel any remaining oversight to the FTC. An FTC whose own authority over ISPs is already very limited, and which could be eroded almost completely if AT&T wins an ongoing court battle against the agency (this fact is conveniently forgotten by the small minority of folks still barking support for this historically-unpopular plan).

The goal is to eliminate nearly all meaningful federal oversight of uncompetitive telecom duopolies. But both Verizon and AT&T also successfully lobbied the FCC to include language banning states from trying to protect consumers from monopoly market abuses, whether they take the form of net neutrality violations, misleading pricing, hidden fees, or a rotating crop of privacy violations.

But the incumbent ISP stranglehold over state legislatures is so severe, this tends to be an uphill battle. Case in point: California recently tried to pass a new, EFF-approved privacy law in the wake of the GOP assault on FCC rules, only to have it scuttled by ISP lobbyists, who convinced state lawmakers that the proposal would somehow “increase popups” and “aid extremists.” In reality the proposal was relatively modest, mirroring the deceased FCC proposal requiring ISPs disclose what data is being collected and sold (and to whom), while requiring they provide working opt out tools.

California’s back again to try the same thing with net neutrality.

Unfortunately right now the proposal by California state Senator Scott Weiner is little more than a placeholder (pdf), but it tries to detail how California will tackle ISPs that violate net neutrality. Since the FCC repeal “pre-empts” states from passing their own net neutrality protections, states like Washington and New York have instead looked toward punishing bad actors like Comcast in other ways. Like restricting access to utility poles, rights of way, or government contracts to companies that repeatedly engage in anti-competitive, anti-consumer behavior. From the proposal:

“Under existing law, the Public Utilities Commission has regulatory authority over public utilities, including telephone corporations. Pursuant to its existing authority, the commission supervises administration of the state’s telecommunications universal service programs. The Digital Infrastructure and Video Competition Act of 2006 establishes a procedure for the issuance of state franchises for the provision of video service, defined to include cable service and open-video systems, administered by these commissions.

The bill would state the intent of the Legislature to enact legislation to effectuate net neutrality in California utilizing the state’s regulatory powers and to prevent Internet service providers from engaging in practices inconsistent with net neutrality…

There’s of course several potential pitfalls here. One, the real issues will arise when California begins trying to define what net neutrality is. As we saw on the federal level in 2010 and 2015, lobbyists are immeasurably successful at using the complex technical nature of net neutrality to their advantage, convincing Luddite lawmakers to include so many loopholes as to make the rules useless. ISP lobbyists will likely work overtime to either water down the bill’s language to the point of absurdity, misrepresent what the bill does (as they did with privacy), or bombard the state with lawsuits (likely all three).

And that’s of course California. There’s countless states where companies like AT&T and Comcast quite literally own state legislatures and most telecom regulators (Tennessee comes quickly to mind). States where similar laws will never be passed or enforced, creating huge oversight gaps for companies with thirty-years of documented anti-competitive history.

That’s why, again, the best path forward to protecting net neutrality remains in hoping the courts get it right, and reverse the FCC’s repeal for being “arbitrary and capricious,” ignoring the public welfare, and turning a blind eye to shady comment period fraud. Not that states shouldn’t try to protect consumers, but without rooting out state-level telecom influence and corruption first, passing meaningful state-level net neutrality protections — then seeing consistent enforcement — remains a long shot.

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Comments on “California The Latest State To Propose Its Own Net Neutrality Rules”

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Thad (user link) says:

Re: CAN SPAM all over again

While the FCC’s recent rule change prevents states from passing their own NN laws, it’s not clear that that will hold up in court.

I don’t see any additional net neutrality laws passing Congress in the foreseeable future. The Senate still has filibuster rules on legislation and they’re unlikely to go away anytime soon; McConnell won’t risk repealing them knowing that his party might be the minority next year. There are ways to pass legislation with a simple majority, like budget reconciliation, but it can only be used once a year and I don’t think NN restrictions are a high enough priority for Republicans to use their one shot at simple-majority lawmaking to pass them.

Anonymous Coward says:

And yet when The Big One hits, they'll be screaming for Federal aid!

As with the recent wildfires: those sun-crazed drug addicts and porno-ists want everything to their advantage with no responsibility to The Union. Classic liberalism.

We’ll also soon likely see if California officials can openly flout Federal law by actively providing help (not just ignoring) illegal immigrants.

Uriel-238 (profile) says:

Re: When The Big One Hits...

You mean like when Harvey hit Houston and Irma hit Florida and we didn’t even shrug when a relief package was signed?

Anonymous Coward are you one of those who only believes red states or the people you like deserve disaster relief, and fuck everyone else who isn’t you?

California Liberalism stems from the notion that we all go through hard times. We all suffer from disasters, and we all have runs of bad luck, and we’re better off helping each other out than hiding in our own individual fallout shelters. The notion is we help out the least of us as much as we can, knowing that at some point each of us will be the one in the barrel.

And that’s the thing with undocumented immigrants. Even if we treat them like crap and just give them our shit jobs (and we do), that’s still better than wherever they came from. And so when they come and work, statistically they lie low and work hard. Not that any of this has to do with net neutrality.

So rather, if you’re begrudging California (for whatever), it sounds like you’re the one not yet ready to take responsibility to the greater nation.

But don’t worry. When your state falls on hard times, neither I nor the State of California will be concerning ourselves with whether your state is pulling its weight or whether or not we like your politics. Rather we’ll recognize that in the end we’re all Americans, and we’re all human beings, and we’re not even going to begrudge it when you hate us after the fact.

Because we’re into inclusion that way. More or less.

Anonymous Coward says:

Re: Re: When The Big One Hits...

It is a well established fact that red states get more federal funding than they contribute while blue states contribute more to the fed than they get. I guess this unequal treatment was not enough for them – so they want to make it more difficult on the blue states … and their rational is not even funny anymore.

Uriel-238 (profile) says:

It's not clear to me how the FCC can ban the states from regulating an industry it refuses to regulate.

I thought that it would have to keep title II provisions in order for fed laws to supersede state laws.

And if they can block state regulations, can they block county regulations? Municipal regulations? Aren’t there about a hundred other issues in which new laws are propped up whenever an old one is struck down by a court? This totally looks like a situation where the public would be able to create too many moles to whack.

The good news is the smaller we have to go, the more the litigation gets fragmented, and the more the telecoms have to spread out their garrison of lawyers.

IANAL, but it seems like three guys in Washington shouldn’t be able to close up an internet that is wanted to be open by millions.

Thad (user link) says:

Re: It's not clear to me how the FCC can ban the states from regulating an industry it refuses to regulate.

Federal courts have previously ruled that the FCC can’t preempt states from banning municipal broadband. That would seem to suggest that the FCC can’t preempt states from introducing their own NN rules. We’ll see what happens; lawsuits are coming.

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