California vs. Jeff Sessions: The Battle for Net Neutrality

November 6, 2018

In 2015, the Federal Communications Commission (FCC)  enacted a rule that prevented internet service providers (ISPs) “from using their market power to favor some websites and services over others.” Known as net neutrality, this rule had prevented ISPs from intentionally blocking, slowing down specific content or websites, and charging their customers additional fees for access to certain internet services. Thus, companies like Comcast and Time Warner Cable could not deny their customers access to, charge extra for, or purposefully slow down an internet service or website, like Netflix or Instagram.
ISPs argued that these regulations hurt their profits and would prevent them from being able to provide quality service to their customers. Telecom companies maintain that deregulation will encourage a free market and an open Internet. However, this argument is undercut by the fact that ISPs virtually have a monopoly and operate with little competition — in fact, there are only a handful of ISPs and most American customers only have access to one such provider.
In December 2017, under the direction of chairman Ajit Pai and the Republican majority on the Commission, the FCC reversed the 2015 rule that upheld net neutrality. This decision was wildly unpopular; over three dozen entities, including a group of 22 attorney generals from various states and the District of Columbia, brought twelve lawsuits the FCC in the US Court of Appeals in the D.C. Circuit, asserting that the FCC’s decision  puts consumers at risk of abusive practices by broadband providers” and unlawfully restricted “state and local regulation of broadband service.” Additionally, perhaps in response to outrage from constituents, five months later, the Senate issued an official disapproval of the rule; however, only 176 of the 435 Congressmen in the House of Representatives have signed a petition to necessitate a vote on a potential review of the FCC’s decision.
Over the past year, many states have decided to take the net neutrality debate into their own hands. According to the National Regulatory Research Institute’s net neutrality tracker, Washington and Oregon passed legislation into law; the governors of Vermont, New York, New Jersey Montana, Hawaii and Rhode Island issued executive orders; 25 other states and DC have either proposed legislation or currently have legislation pending.
However, none of the actions of these states have attracted as much attention and backlash as those of California. On August 31, 2018, California legislators passed “the strongest internet protections in the country.” Governor Jerry Brown signed the bill into law on September 30. The law will prevent ISPs from blocking or slowing down lawful Internet traffic; requiring additional fees from websites or online services to prioritize their traffic to consumers (known as “paid prioritization”);  and bans exempting certain traffic from counting against a customer’s data usage (known as “zero-rating”).

Unlike other states’ net neutrality laws, the California law fully restores the FCC’s 2015 net neutrality regulations.

Verizon, a major ISP,  may have played a key role in California’s push for such strong net neutrality laws. In July 2018, while wildfire firefighters in Santa Clara county were in the middle of combating a the largest fire in state history — spreading almost 300,000 acres — Verizon cut off the internet connection to a vehicle that firefighters relied upon for vital emergency communications. Verizon notified the fire department’s IT officer that the department had exceeded its data plan, and to restore internet speed, the department would have to upgrade to a new plan that cost twice as much, forcing the fire department to rely on other departments’ internet connections and eventually purchase the more expensive plan. (Verizon later claimed that their communications had nothing to do with net neutrality and were a “mistake” in what the company’s customer service communicated to the fire department about their plan.)
Immediately after Governor Brown signed the bill, the Department of Justice (DOJ) announced that it would sue California, claiming that the state’s net neutrality laws were unconstitutional. According to the DOJ, the Constitution and the FCC’s order preempts the California law, since only the federal government has the authority to regulate interstate commerce. The DOJ filed the lawsuit the same day, asking for an injunction to prevent the law from going into effect. On October 3, telecom lobby groups (which together represent all of the nation’s major ISPs) also filed suit against California, echoing the DOJ’s claims that California’s law was unconstitutional and the need for an injunction.
Proponents of California’s net neutrality laws assert that by repealing net neutrality laws, the federal government effectively abandoned regulation in this area, leaving it open for states to enact their own rules regarding net neutrality. According to attorney Gigi Sohn, who helped craft the 2015 FCC net neutrality rules, the the California net neutrality law simply fills a gap in consumer protection that the FCC has willingly and happily created.” Furthermore, proponents also argue that the FCC’s repeal of net neutrality endanger public safety, citing the Verizon-Santa Clara fiasco (the County of Santa Clara also sued the FCC) since without regulation, ISPs have — and may continue to — slow down internet connections of emergency response teams during natural disasters, endangering crucial emergency communications. California’s law will go into effect on January 1, 2019 if the federal government is unable to preempt it.
With these lawsuits pending and midterms elections looming, net neutrality is likely to be a major point of discussion and debate among both constituents and candidates. Yet this issue seems like it should hardly be a partisan one; after all, there is no evidence or data that shows that net neutrality has hurt ISPs’ profits, and most (if not all) people who have ever paid for internet service will agree that they would like to be able to access Netflix and YouTube without having to pay extra — in time and money.