On Sunday September 30, Governor Jerry Brown signed into law Senator Scott Wiener’s SB 822, the first state-level law that comprehensively restores all of the net neutrality protections of the 2015 Open Internet Order.
Here’s my statement:
“Today was a historic moment in the battle to bring back net neutrality in the United States. SB 822 comprehensively restores to California all of the net neutrality protections from the 2015 Open Internet Order that the FCC repealed in 2017.
Like the 2015 Order, SB 822 ensures that Californians, not the companies they pay to get online, get to be in control of what sites, apps and services they use. SB 822 bans ISPs from blocking, throttling, and charging websites fees for access to the ISP’s subscribers or for fast lanes, which will protect California’s economic growth, innovation economy and democratic engagement.
The law 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.
SB 822 ensures that all Californians, no matter the color of their skin or the size of their bank account, have an equal chance to pursue their dreams and connect with others online.
The law protects California’s economy by ensuring that ISPs like Comcast, AT&T, and Verizon can't use their control over the on-ramps to the Internet to interfere with the free markets that depend on the Internet. And it protects the 21st century version of the American dream, making sure entrepreneurs can innovate cheaply and without permission.
But SB 822 also resonates outside California’s borders.
When California acts, the rest of the country -- and the world -- often follows. As the largest state in the nation and the fifth largest economy in the world, California has long been on/at? the forefront of forward-looking policy. As the home to many of the world’s most important Internet companies and the most vibrant innovation ecosystem in the world, California needed to restore net neutrality to protect its economy.
SB 822 sets a standard that other states can and should 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. Existing state-level laws and executive orders 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.
The bill comes at a time when net neutrality is more critical than ever. The same week that the net neutrality repeal went into effect, AT&T merged with Time Warner with no consumer protections attached to the deal. Comcast already owns NBCUniversal and is looking to buy additional media properties.
That means mega-corporations like AT&T and Comcast that own the content also own the pipes that deliver the content. Without net neutrality protections, ISPs have the means, motive and opportunity to tilt the internet in their favor at the expense of everyone else, from startups to communities of color.
California legislators realized that ISPs have many ways to pick winners and losers online. To be effective, a net neutrality law needs to protect against all of them.
For instance, to give themselves an advantage, ISPs can speed up their own content or exempt it from their subscribers’ monthly data caps while counting the usage of all other websites and services against those caps. They can block websites as they travel across the ISPs’ network, or at the points where their network connects to the rest of the internet.
That’s why SB 822 ensures that ISPs can’t evade net neutrality at the point where data enters their network. This closes a loophole large ISPs abused from 2013-15, when they slowed down sites and services for tens of millions of Americans who had paid for fast broadband connections.
That’s also why SB 822 bans anti-competitive forms of zero-rating, while allowing those that do not harm competition or consumers.
SB 822 is firmly grounded in the law.
While the FCC's 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid.
When the FCC repealed the 2015 Open Internet Order, it also said that it had no power to regulate broadband internet access providers. According to case law, an agency that has no power to regulate has no power to preempt the states. 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.
Thanks to Governor Brown’s signature today, California is the first state to comprehensively restore critical net neutrality protections, making California yet again an example for the rest of the country to follow.
Professor Barbara van Schewick is a professor of law at Stanford University and the director of Stanford Law School’s Center for Internet and Society.