On September 30, 2020, a group of seven Professors of Internet Law, led by Barbara van Schewick, Professor of Law and Director of the Center for Internet and Society at Stanford Law School, filed a friend of the court brief in the lawsuit over the California net neutrality law.
Background
In 2017, the FCC decided to eliminate all net neutrality protections that had been in place at the federal level, reclassify broadband as an information service under Title I of the Communications Act, and preempt the states from adopting their own net neutrality laws.
In 2018, California adopted its own net neutrality law. It’s the only state-level law that restores all of the net neutrality protections that the FCC eliminated and is widely viewed as a model bill.
The United States and a group of ISP trade associations immediately filed a lawsuit seeking to overturn the California net neutrality law. The lawsuit was put on hold pending resolution of the Mozilla case challenging the FCC’s 2017 repeal order, including its blanket ban on states enacting net neutrality protections for their residents. In October 2019, the Court of Appeals for the D.C. Circuit ruled in Mozilla v. FCC that the FCC lacked authority to prohibit states from enacting their own net neutrality laws, while narrowly upholding the FCC’s classification of broadband as an information service and the elimination of net neutrality.
So on August 5, the United States and the ISPs started up again in California, filing motions for a preliminary injunction. California filed its opposition brief on September 16. A short blog post explaining where things stand and what the key issues are is here: https://cyberlaw.stanford.edu/blog/2020/09/california-defends-its-net-neutrality-law.
The amicus brief
The amicus brief focuses on the Plaintiffs’ arguments on what’s known as field preemption.
The United States and the ISPs argue that the Communications Act itself preempts the entire field of “interstate communications,” a term that describes the scope of the FCC’s jurisdiction under the Act. In other words, they argue that states have no authority at all to regulate any service that is within the scope of the Communications Act, even if the Act does not give the FCC authority to regulate that service. That’s a sweeping argument that the FCC didn’t even make itself in its repeal of net neutrality.
It’s a novel and radical re-interpretation of the Communications Act. If successful, this argument would make it impossible for states to regulate websites, content, or services on the Internet. All of these services are “information services” under the Act. They include “interstate communications,” but for most information services, the FCC has basically no authority to regulate them. Thus, the Plaintiffs’ argument would create a regulatory void, where neither the FCC nor the states could regulate information services. This would make it impossible for states to adopt not only their own net neutrality laws, but also block state broadband privacy laws, state laws on online gambling or online payday lending, etc.
If the court adopts this radical argument, neither the FCC nor the states would have authority over broadband. As the D.C. Circuit determined in its decisions in Mozilla, Verizon, and Comcast, the FCC does not have authority to adopt net neutrality protections other than a transparency rule now that it has classified broadband internet access service as an “information service” under Title I of the Act. Thus, if the Plaintiffs win on the field preemption argument, neither the FCC nor the states could regulate broadband internet access service.
The amicus brief argues that:
1. The Communications Act does not preempt the field of “interstate communications” based on an analysis of the text and structure of the Act as well as the case law.
2. The Communications Act does not preempt the field of “interstate information services,” either.
3. The lack of preemption is not a problem, because the dormant commerce clause ensures that states cannot interfere with other states’ rights or interstate commerce.
Signatories
Amici are (institutions are listed for identification purposes only):
- Barbara van Schewick, Professor of Law and (by Courtesy) Electrical Engineering, Helen L. Crocker Faculty Scholar, Stanford Law School (principal author);
- Michael J. Burstein, Vice Dean and Professor of Law, Cardozo Law School (co-author);
- Brett M. Frischmann, Charles Widger Endowed University Professor in Law, Business and Economics, Villanova University;
- Chris Jay Hoofnagle, Professor of Law In Residence, University of California, Berkeley, School of Law;
- Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School;
- Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law, University of California, Berkeley, School of Law; and
- Jason M. Schultz, Professor of Clinical Law, New York University School of Law.
Counsel for the Amici are (institutions are listed for identification purposes only):
- Michael J. Burstein, Vice Dean and Professor of Law, Cardozo Law School; and
- Phillip R. Malone, Professor of Law and Director, Juelsgaard Intellectual Property and Innovation Clinic.