Stanford CIS

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

By Barbara van Schewick on

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:

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.