Super Cali's unrealistic net neutrality process – even though the sound of it is something quite... ferocious

Why draft law won't be enough to protect state's internet

California's attempt to retain net neutrality rules despite being repealed at the federal level, won't make it past a legal challenge, the Electronic Frontier Foundation (EFF) has warned.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.

Similar topics

Other stories you might like

  • Prisons transcribe private phone calls with inmates using speech-to-text AI

    Plus: A drug designed by machine learning algorithms to treat liver disease reaches human clinical trials and more

    In brief Prisons around the US are installing AI speech-to-text models to automatically transcribe conversations with inmates during their phone calls.

    A series of contracts and emails from eight different states revealed how Verus, an AI application developed by LEO Technologies and based on a speech-to-text system offered by Amazon, was used to eavesdrop on prisoners’ phone calls.

    In a sales pitch, LEO’s CEO James Sexton told officials working for a jail in Cook County, Illinois, that one of its customers in Calhoun County, Alabama, uses the software to protect prisons from getting sued, according to an investigation by the Thomson Reuters Foundation.

    Continue reading
  • Battlefield 2042: Please don't be the death knell of the franchise, please don't be the death knell of the franchise

    Another terrible launch, but DICE is already working on improvements

    The RPG Greetings, traveller, and welcome back to The Register Plays Games, our monthly gaming column. Since the last edition on New World, we hit level cap and the "endgame". Around this time, item duping exploits became rife and every attempt Amazon Games made to fix it just broke something else. The post-level 60 "watermark" system for gear drops is also infuriating and tedious, but not something we were able to address in the column. So bear these things in mind if you were ever tempted. On that note, it's time to look at another newly released shit show – Battlefield 2042.

    I wanted to love Battlefield 2042, I really did. After the bum note of the first-person shooter (FPS) franchise's return to Second World War theatres with Battlefield V (2018), I stupidly assumed the next entry from EA-owned Swedish developer DICE would be a return to form. I was wrong.

    The multiplayer military FPS market is dominated by two forces: Activision's Call of Duty (COD) series and EA's Battlefield. Fans of each franchise are loyal to the point of zealotry with little crossover between player bases. Here's where I stand: COD jumped the shark with Modern Warfare 2 in 2009. It's flip-flopped from WW2 to present-day combat and back again, tried sci-fi, and even the Battle Royale trend with the free-to-play Call of Duty: Warzone (2020), which has been thoroughly ruined by hackers and developer inaction.

    Continue reading
  • American diplomats' iPhones reportedly compromised by NSO Group intrusion software

    Reuters claims nine State Department employees outside the US had their devices hacked

    The Apple iPhones of at least nine US State Department officials were compromised by an unidentified entity using NSO Group's Pegasus spyware, according to a report published Friday by Reuters.

    NSO Group in an email to The Register said it has blocked an unnamed customers' access to its system upon receiving an inquiry about the incident but has yet to confirm whether its software was involved.

    "Once the inquiry was received, and before any investigation under our compliance policy, we have decided to immediately terminate relevant customers’ access to the system, due to the severity of the allegations," an NSO spokesperson told The Register in an email. "To this point, we haven’t received any information nor the phone numbers, nor any indication that NSO’s tools were used in this case."

    Continue reading

Biting the hand that feeds IT © 1998–2021