On Friday August 31, the California Senate gave final approval to Senator Scott Wiener and Sen. Kevin De León’s SB 822, which would adopt net neutrality protections for California. The bill now heads to Governor Jerry Brown for his signature before September 30.
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, Sabrina Cervantes, David Chiu, Laura Friedman, Ash Kalra, Monique Limón, Kevin McCarty, Kevin Mullin, Adrin Nazarian, Miguel Santiago, Mark Stone and Phil Ting.
Here is my statement:
“Today was a landmark in the fight to preserve a free and open internet. SB 822 brings back net neutrality to California and restores the important protections that the FCC voted to eliminate last December.
SB 822 sets the standard for other states to follow. SB 822 is the only state-level bill that truly restores all the 2015 net neutrality protections. That’s what makes it so special. Most state-level bills have just copied the text of the FCC’s 2015 net neutrality rules, leaving out critical protections. By contrast, SB822 includes the important protections and clarifications in the full Order which explained the rules and closed known loopholes
When California acts, the world pays attention. California is the largest state in the nation and the fifth largest economy in the world; 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.
This bill ensures that Californians, not the ISPs they pay to get online, get to choose what websites and apps they use.
It 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. The bill protects the Silicon Valley version of the American dream by making sure that new businesses can innovate cheaply and without the permission of big ISPs.
Most importantly, the bill ensures that all Californians -- no matter the size of their wallets, the color of their skin, or their political leanings -- have an equal chance to reach people online and participate in our democracy.
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.
Like the 2015 Order, the bill also ensures that ISPs cannot circumvent these protections at the point where data enters their network, closing a known loophole.
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.”
Professor Barbara van Schewick is professor of law at Stanford University and the director of Stanford Law School’s Center for Internet and Society.