Failing the Real Test: SB 822 No Longer Restores All the Lost Net Neutrality Protections

On June 20, SB 822 had its first committee hearing in the California Assembly. The bill, authored by Senator Scott Wiener, sought to bring back net neutrality to California and restore all of the important protections that the FCC voted to eliminate in December. It was widely viewed as a net neutrality model bill that would set the standard for other states. But instead of passing the bill, the committee adopted amendments that effectively gutted it, removing critical protections at a time when they are more important than ever. 
Led by chairman Miguel Santiago, the Communications and Conveyance Committee adopted hostile amendments to SB 822 that cut key parts of the bill, including the ban on charging websites fees for access to an ISP‘s customers, the ban on circumventing the bill‘s protections via interconnection practices, and the bill‘s provisions on zero-rating. 
But the committee removed much more than that.
The amendments mechanically cut any text that was taken from the 2015 Open Internet Order and left only the text that was in the 2015 Open Internet Rules. This stripped out all of the protections in the 277-page order that adopted the two pages of rules and explained what they meant.
Before the amendments, SB 822 was the only state-level bill that incorporated both the text of the 2015 Open Internet Rules and the important protections and clarifications in the text of the 2015 Open Internet Order. 
That’s how the bill matched all of the protections that the FCC abolished in December -- the true test of any net neutrality bill. Thus, the amendments removed all of the text that made the bill a model bill. The resulting bill is considerably weaker than the 2015 net neutrality protections embodied in the 2015 Open Internet Order and has significant loopholes. 
The committee did so in a way that many observers described as unprecedented
The chair published the committee report with the proposed amendments at 10 p.m. the night before the hearing, giving the public, experts and the media less than 12 hours before the hearing the next morning to review the amendments. At the hearing, the committee immediately voted to adopt these amendments before hearing any testimony. The committee then voted 8-2 to pass the amended bill over the objections of its author.
Due to the amendments, SB 822 now has large, known loopholes that ISPs can and will exploit. 
The amendments allow ISPs to engage in net neutrality violations that the FCC’s 2015 Open Internet Order and SB 822 had previously prohibited.
The bill now:
  • Appears to allow ISPs to charge websites and small businesses “access fees” just to reach the ISPs’ customers, and block any website or service that doesn’t pay the fee. There would be no limits to or oversight over how high those fees could be. For instance, AT&T could charge every website a fee simply to load for AT&T Internet subscribers. That means if the LA Times hasn’t paid the fee, it will not be accessible to AT&T’s subscribers.
  • Allows ISPs to circumvent net neutrality protections at the point where data enters the network. Thus, instead of blocking a website as it is transported over the ISP’s network, the ISP can just block or slow it down as it enters the ISP’s network. So AT&T could effectively slow down all competing online video applications at the edge of its network to give itself a competitive advantage. 
  • Appears to allow ISPs to slow down entire classes of applications, such as all online gaming or all online voice calls. When not explicitly banned from doing so, AT&T blocked all online telephony applications on its mobile Internet service in order to keep people paying for its expensive calling plans.
  • Appears to allow ISPs to speed up an application or class of applications, so AT&T could speed up YouTube while all other video is buffering -- or speed up all online gaming while online phone calls break up.
  • No longer explicitly prohibits ISPs from anti-competitively zero-rating their own content, i.e. AT&T can make every video service on the internet count against users’ artificially low monthly data caps -- except for the video services AT&T owns -- tilting the internet in favor of its own content and away from every other speaker and online service.
  • No longer explicitly prohibits ISPs from charging websites a fee in exchange for zero-rating them, giving large corporations an unfair advantage over startups, small businesses, local news sites, churches and communities of color. With artificially low data caps, users gravitate towards content that doesn’t count against their data cap, effectively making it harder for speakers without deep pockets to be heard. 
  • Allows ISPs to claim that blocking or slowing down individual applications or classes of applications (including ones that compete with its own services) is reasonable network management. That’s what Comcast claimed in 2007 when the FCC investigated Comcast’s secret blocking of peer-to-peer services. That would force the California AG and the courts to re-litigate the FCC’s 2008 decision that prohibited Comcast from engaging in this practice.
  • Allows ISPs to claim that Internet services sold to small businesses, universities, schools or libraries do not need to comply with the bill’s net neutrality protections.
  • No longer explicitly prohibits ISPs from selling data that can only be used for specific applications or from charging users different prices for using different apps.
  • Creates a potential loophole that ISPs could try to use to circumvent the ban on paid fast lanes by calling them a specialized service.
  • No longer explicitly allows consumers to choose which applications they want to prioritize.
  • No longer explicitly allows pro-consumer zero-rating plans such as zero-rating everything from midnight to six a.m.
This is far below the level of protection provided by the 2015 Order. 
This is the inevitable result of the committee simply copying-and-pasting the short 2015 Open Internet Rules, and ignoring the additional definitions, clarifications, and protections in the order that adopted and explained the rules. 
SB 822 was the only state-level bill that matched the level of protections provided by the FCC under the 2015 rules, precisely because the bill painstakingly translated both the order and the rules.
The real test of a comprehensive state-level net neutrality bill is whether it restores all of the net neutrality protections that the FCC eliminated in December.
Before the amendments, SB 822 was the only state-level bill in the country that passed that test. As amended, it fails.

Add new comment