California Will Hold Off Enforcing State’s Net Neutrality Law

October 26, 2018
11:45am PT
Eriq Gardner
Getty Images
California AG Xavier Becerra
Under a deal between federal and state authorities, a Justice Dept. lawsuit over SB-822 will be paused until there’s appellate resolution to the FCC’s repeal of federal net neutrality rules.
For the time being, the U.S. Justice Department and the state of California have backed off on an immediate clash over SB-822, the recently passed legislation that provide’s the country’s strongest protection against ISPs blocking and throttling traffic. Thanks to an agreement between federal and state authorities, California won’t take any action to enforce California’s new net neutrality law until the DC Circuit Court of Appeal and maybe the U.S. Supreme Court weigh in on the FCC’s repeal of Obama-era net neutrality rules.
The Justice Department sued earlier this month and sought an injunction against enforcement of SB-822.
That law was signed by  California Gov. Jerry Brown after the FCC pulled back from classing broadband as a “telecommunications service” subject to regulation under Title II fo the Communications Act. When the FCC under the leadership of chairman Ajit Pai made this deregulatory move, California lawmakers rushed in to tackle paid prioritization of traffic and also attacked telecom practices such as “zero-rating,”  whereby a telecom data provider like AT&T doesn’t count the consumption of its owned content against an individual subscriber’s data plan.
The U.S. government’s lawsuit contends that  SB-822 is preempted by federal law and thus violates the Supremacy Clause of the United States Constitution.
California was due to respond to the motion for a preliminary injunction on Friday, but instead, the parties informed the judge in the Eastern District of California of a deal.
Under the terms of the stipulation, proceedings in the case are paused until appellate resolution of the challenge to the FCC’s net neutrality repeal. The federal government will withdraw its motion for a preliminary injunction while California agrees not to enforce its own law for the time being.
The case may be re-activated once the Supreme Court either rules on the FCC’s repeal or denies a petition to review whatever the DC Circuit decides.  That could take a year or even longer, and of course, federal lawmakers may change the ground to fight on by passing new legislation. A Democratic win in the midterms would help such efforts, though the prospect of a veto from Donald Trump likely puts the outcome of net neutrality in the courts.
Pai sounded the trumpet upon the news.
“I am pleased that California has agreed not to enforce its onerous Internet regulations,” he said in a statement. “This substantial concession reflects the strength of the case made by the United States earlier this month. It also demonstrates, contrary to the claims of the law’s supporters, that there is no urgent problem that these regulations are needed to address. Indeed, California’s agreement not to enforce these regulations will allow Californians to continue to enjoy free-data plans that have proven to be popular among consumers. The Internet is inherently an interstate information service, as the Supreme Court has recognized, which means that only the federal government can set policy in this area.”

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