By Barbara van Schewick on March 14, 2018 at 6:00 am
On Wednesday, Senator Scott Wiener introduced the text of California Senate Bill 822, which would adopt net neutrality protections for California. The bill is co-authored by Senators Ben Allen, Bill Dodd, Jerry Hill, Mike McGuire, Bill Monning,Nancy Skinner, and Connie Leyva, and Assembly Members Richard Bloom, Rob Bonta, David Chiu, Laura Friedman, Ash Kalra, Kevin Mullin, and Phil Ting.
Here is my statement:
Last December, the FCC voted to eliminate all net neutrality protections without a replacement. Although the net neutrality rules are still in effect, they will end soon, leaving Americans without protections against net neutrality violations by Internet Service Providers (ISPs) that connect us to the Internet.
Senator Scott Wiener's bill SB 822 is the first state-level bill that would comprehensively secure all of the net neutrality protections that Americans currently enjoy. California is the largest state in the nation; its Internet companies and vibrant innovation ecosystem are the envy of the world. Protecting consumers and businesses in California is critical for California's economy.
The bill ensures that ISPs like Comcast, AT&T, and Verizon can't use their power over the on-ramps to the Internet to interfere with the free markets that depend on the Internet. It also ensures that Californians, not their ISPs, are the ones who decide which applications, websites, and services they use. By keeping the costs of innovation low, the bill protects the Internet version of the American dream. Most importantly, the bill ensures that every Californian -- no matter the size of their wallets or the color of their skin -- has an equal chance to innovate and reach people online.
The bill prohibits ISPs from blocking, speeding up or slowing down websites, applications, and services; charging online companies for access to an ISP's customers and blocking those that do not pay; and from entering into deals with online companies to put them in a fast lane to the ISP's customers.
The bill also ensures that ISPs cannot circumvent these protections. For example, ISPs have slowed down data as it entered the ISPs' network in order to extract fees from online companies. Like the 2015 order, the Wiener bill closes this loophole.
Some state-level attempts to legislate have just copied the text of the FCC's 2015 net neutrality rules. But that's not sufficient. Some important protections were fleshed out in the text of the order. Senator Wiener's bill explicitly codifies these protections as well.
The bill is on firm legal ground.
While the FCC's 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. 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.
But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC's Order is explicit on this point.
Since the FCC's 2017 Order removed the agency's authority to adopt net neutrality protections, it doesn't have authority to prevent the states from doing so, either.
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