Democratic State AGs, Others Oppose DOJ/ISP Bid to Stop California Net Neutrality Law
New York Attorney General Letitia James and 18 other Democratic state attorneys general were among those filing amicus briefs Wednesday opposing a DOJ bid to get a preliminary injunction to stop enforcement of California’s net neutrality law (see 2008050060). DOJ's and ISPs’ lawsuits against the California statute (SB-822) in U.S. District Court in Sacramento resumed in early August after Mozilla and others let pass a July 6 deadline to seek a Supreme Court review of FCC rescission of its 2015 national rules (see 2007300041). TechFreedom, TIA and the U.S. Chamber of Commerce filed amicus briefs in August supporting the litigation (see 2008200034).
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DOJ and the ISPs claim broadband providers “are uniquely entitled to immunity from state regulatory authority, even when they engage in activities that harm consumers and undermine public safety,” but providers that choose “to offer goods or services in a State must comply with that State’s laws,” the AGs said (in Pacer). “And States have the historic police power to pass laws targeting industry-specific abuses occurring within their boundaries. Nothing in federal law disables the States from exercising such authority here.” The AGs who signed on to the brief included Vermont’s TJ Donovan (D), whose state faces paused litigation against its net neutrality law in U.S. District Court in Burlington (see 2009250073).
“Congress expressly acknowledged and sought to preserve the effect of state laws that, like SB 822, protect consumers and address unfair business practices by” broadband providers, the AGs said: In the Communications Act and 1996 Telecom Act, lawmakers “endorsed active, affirmative, and meaningful state regulation of communications services, especially where such regulations fall within the States’ traditional police powers.” None “of plaintiffs’ meritless theories of preemption override[s] these plain expressions of congressional intent to preserve rather than supplant state regulatory authority,” the AGs said.
SB-822 “protects Californians by filling the gap the FCC created” when it rescinded its national rules, said Fight for the Future, the Electronic Frontier Foundation and other California-based groups in their filing (in Pacer). “It preserves the ability of all Californians, including the most vulnerable, to fully participate -- economically, socially, and politically -- in everyday life. It ensures that ISPs cannot block, throttle, or distort Internet content, and prohibits zero-rating and other paid prioritization schemes.” The law also “guarantees that as California faces present and future crises including wildfires and the COVID-19 pandemic, it can rely on an open Internet as a lifeline for essential workers and ordinary residents alike.”
The Media Democracy Fund, Columbia Law School professor Tim Wu and other academics argued there’s “no merit” to claims SB-822 conflicts with the Communications Act’s limits on the FCC’s power to issue common carriage regulations. The law also isn’t preempted by the FCC’s broadband regulatory regime because the U.S. Court of Appeals for the D.C. Circuit’s Mozilla decision leaves “open only challenges to ‘a specific state regulation’ based on ‘provision-specific arguments,’” which “surely does not contemplate the FCC arguing that all state regulation of” broadband providers “is preempted because it conflicts with the agency’s deregulatory preferences,” the academics said (in Pacer).
University of California-Berkeley Center for Law & Technology co-Director Pam Samuelson, Harvard Law School professor Lawrence Lessig and five other academics said the Communications Act contains “nothing … that suggests” the FCC’s jurisdiction over interstate communications “is exclusive as to the entire field, and much to affirm that it is not. Like most federal laws, the Act leaves intact the states’ preexisting police power.” The states’ “exercise of these powers is, of course, limited by express preemption -- in the Act itself or through FCC actions within the scope of its delegated authority; by ordinary principles of field (with respect to certain narrower fields) and conflict preemption, as applicable; and by the Dormant Commerce Clause,” the professors said (in Pacer).
It’s “vitally important that SB 822 goes into effect and is enforced,” said Access Now, Free Press, Mozilla, New America’s Open Technology Institute and Public Knowledge. “Without any regulation, ISPs will continue to cause harm to their customers, preventing them from accessing the online content providers of their choice, and harming the open internet writ large by artificially constricting internet usage to pad ISPs’ own bottom lines.” The groups disputed what they view as false claims by ISPs and their allies “that industry investment declined in 2015 and 2016” when the FCC’s rules were in place and that “investment rebounded in 2017 and 2018” after rescission.