California’s net neutrality rules good to go after judge boots Big Cable’s lawsuit

Judge Mendez also suggests trying to use 1934 law in 2021 is... sub-optimal


California’s net neutrality rules will kick in this year after a judge rejected an effort by the cable industry to stop it.

On Tuesday, Judge John Mendez in Sacramento rejected a request by four industry associations for a preliminary injunction against SB-822 that was signed into law back in September 2018 and hit with the lawsuit [PDF] the following month.

The industry associations argued that the rules should not be allowed to come into force until a lawsuit brought by the Department of Justice against the State of California was resolved. But when that lawsuit was dropped by the new Biden Administration earlier this month, California’s attorney general immediately petitioned [PDF] the courts to dismiss the injunction request.

Judge Mendez not only dismissed the injunction request but had plenty to say about it. According to reporters who followed the hearing live, Mendez specifically acknowledged that net neutrality has become a partisan political punchbag.

“There are political overtones,” he noted. “This decision today is a legal decision and shouldn’t be viewed in political lens. I'm not expressing anything on soundness of policy. That's better left to Congress.”

He then stressed that the right place to resolve the decade-long back-and-forth over consumer protections over internet access was Congress and not the federal courts. "When you have to deal with legislation drafted in 1934 in 2021, I don’t think anyone is well served,” he said, referencing the Telecommunications Act created in the telephone era that the FCC has been forced to rely on to impose constraints on internet service providers.

He went on: “That is Congress' job. They have to keep up with what is going on in the real world.”

(Really) outdated laws

He’s absolutely right: the 1934 Telecommunications Act that Democrats have ended up relying on for net neutrality rules was not in anyway designed for the internet era and in order to make it work, the FCC was forced to strike huge portions of it.

Likewise, the laissez-faire approach championed by the cable industry and Republicans relies on the 1996 Telecommunications Act - passed at the very beginning of the internet era before anyone knew what impact it would have - and comprises a single paragraph; hardly a solid legal foundation for our predominant method of communicating in 2021.

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US govt drops challenge to California’s net neutrality law, signals shift to once again safeguard connections

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Regardless, the decision was greeted with the usual celebration on one side and gnashing of teeth on the other, making the issue almost on a par with America’s other great political disagreements over guns and abortion.

California Attorney General Xavier Becerra said in a statement: “The ability of an internet service provider to block, slow down or speed up content based on a user’s ability to pay for service degrades the very idea of a competitive marketplace and the open transfer of information at the core of our increasingly digital and connected world.”

Acting head of the FCC Jessica Rosenworcel also welcomed the news: “When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws,” she tweeted. “Tonight a court in California decided that the state law can go into effect. This is big news for #openinternet policy.”

The author of SB-822, state senator Scott Wiener, was also in a buoyant mood: “MAJOR WIN FOR NET NEUTRALITY!” he tweeted. “The federal court just rejected the effort by telecom & cable companies to block enforcement of the net neutrality law I authored, #SB822! The court ruled that California has the authority to protect net neutrality. SB 822 can now be enforced!”

The future may look a lot like the past

Now that California will be allowed to start imposing its own net neutrality rules, other states - again, Democratic-led states - are expected to follow its lead and ensure that internet users are given unrestricted access to online information.

Cable companies have long argued that such rules are unfair and unnecessary, in large part because they feel it puts them under constraints that big internet companies like Google are not subject to, and because it cuts off what could be an extremely valuable source of revenue charging companies and consumers more for priority access to their networks.

In truth, ISPs have steered clear of abusing their position as gatekeepers while the net neutrality debate has continued to play out. For one, it makes little sense for them to create and invest in new business models when they could be ruled illegal in the stroke of a pen (as happened today), and second, such is the heightened debate over net neutrality that any explicit profiteering over internet access by a specific company would almost certainly lead to a boycott campaign and public relations headache.

Despite the decision, however, there is still a large degree of uncertainty. California’s (and other state’s) net neutrality laws will now hold but only for as long as the federal government doesn’t act. The FCC may well seek to return to its previous rules that would almost certainly override the California law. And then the next administration in four years could yet again flip the issue by again suing the states or by imposing another new version of such rules.

The only long-term solution to this exhausting and unhelpful battle is, as the judge pointed out this week, for Congress to step in and develop a new telecommunications law that reflect the modern internet era. ®


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