California's attempt to retain net neutrality rules despite being repealed at the federal level, won't make it past a legal challenge, the Electronic Frontier Foundation (EFF) has warned.
Earlier this week, the California Senate passed SB460, which is legislation that would reimpose open-internet rules agreed to by the federal telecoms regulator, the FCC, in 2015 but were discarded in a controversial vote in December.
The state Senate's draft law will now pass to Cali's Assembly, where it is also expected to be approved, and then on to the governor's office for his signature.
But, warns EFF legislative counsel Ernesto Falcon, the law is unlikely to hold up to what would be an inevitable legal challenge from large telecommunications companies because internet access is viewed as an interstate service and so federal rules take precedence over state rules.
That is a position that has already been heavily staked out by the cable industry – and even written down and sent to the FCC as a blueprint for ensuring that ISPs will prevail despite the best efforts of state legislatures.
"States are constrained because federal policy can override, or 'pre-empt,' state regulation in many circumstances," explained Falcon in a blog post this week. "State law that doesn't take this into account can be invalidated by the federal law. It's a waste to pass a bill that is vulnerable to legal challenge by ISPs."
But all is not lost, and Falcon noted that "strong alternatives are available."
What are those alternatives? They are pressure points that the state has undeniable authority over, and which are just painful enough to get ISPs to steer clear of trying to cut deals within California for prioritizing certain types of internet content over their pipes.
Three's a crowd
What are they? Well, there's three of them, they're not sexy but they are liable to be effective.
First up is the California broadband subsidy program. Right now, the state spends hundreds of millions of dollars ensuring that all residents can get access to reasonably priced internet access.
The ISPs are the direct recipients of that money, and California could decide that if they want to continue to pocket that dosh they need to stick to net neutrality principles. It’s the state's money so it can decide what to do with it. As such, Big Cable would have to do the math, and decide whether it can make more money cutting new prioritization deals with various websites – or maintaining the status quo.
Second, California owns over four million utility poles that internet providers use to hold their network gear. It would within the state's right to tie some conditions to the use of those poles. Say, following net neutrality rules.
And third, Falcon argued that the state legislature could empower cities to use their franchise agreements with cable companies – because, of course, all the big ISPs are also all the big cable companies – to require them to follow certain regulations, like net neutrality rules, as a condition of their agreement to use local infrastructure.
As things stands, none of those three approaches are included in SB460 – the bill currently going through the system. They may however be included in SB822, a second bill that is still being drafted and is also focused on ensuring that net neutrality is protected in California.
Falcon said he hopes SB822 "can cover what is missing in SB460," or that lawmakers in Sacramento will put in additional provisions as SB460 passes through the legislative process that mean at least some of it can withstand a legal challenge.
Either way, it is likely to be an extremely important and precedent-setting piece of legislation. Even though two states' governors had decided by executive action that state agencies can only use an ISP that follows net neutrality rules, California is the first state to introduce legislation that imposes such rules for all consumers.
As such it had a huge target painted on its back and Big Cable will be keen to ensure that doesn't end up in a situation where it is not able to cut nationwide deals, but instead has to work state by state in any future network traffic prioritization efforts. ®
PS: Check your Comcast bill for any unexpected charges – Washington state has issued a consumer alert over unwanted fees suddenly appearing on monthly payments.