Net Neutrality: Back to Court in California

It’s back to court for Net Neutrality.

In separate filings to a U.S. District Court in California, four communications trade associations and the U.S. Department of Justice filed requests this week to block California’s net neutrality law because, they contend, current FCC rules preempt the state law. Such state measures “impose burdensome requirements on ISPs” and impair broadband access “by requiring each ISP to comply with a patchwork of separate and potentially conflicting requirements” in various areas, said the four groups in their joint filing: NCTA – The Internet and Television Association, ACA Connects – the American Cable Association, and CTIA – The Wireless Association and USTelecom – The Broadband Association.

The suits come a month after Mozilla and other mostly-California-based tech firms decided not to pursue their appeal of the FCC net neutrality order to the Supreme court.

Related: Mozilla Drops Appeal of FCC Net Neutrality Decision 

In its suit to overturn California’s SB-822 law, DOJ said the legislation revives the FCC’s 2015 Open Internet Order, which was replaced by the agency’s 2017 Restoring Internet Freedom Order, the benchmark rule of the early Ajit Pai FCC.

DoJ had previously sued California shortly after the law was enacted in 2018. 

The trade associations’ request for a preliminary injunction in the U.S. District Court for the Eastern District of California (in Sacramento) calls the California Internet Consumer Protection and Net Neutrality Act of 2018 “unconstitutional state regulation.” They contend that it was “purposefully intended to countermand and undermine federal law” by imposing broadband limitations and adding “even more restrictive regulations.”

“SB-822’s ambiguous restrictions on paid interconnection agreements between ISPs and edge providers create uncertainty that will harm ISPs’ businesses,” the groups said, arguing that the state law will influence ongoing commercial negotiations with edge providers, transit providers, CDNs and other Internet network operators.”

Related: California Senate Approves Net Neutrality Rules 

In addition to California, three other states (Washington, Oregon, and Vermont) have enacted state-specific net neutrality legislation. Six other states (Hawaii, Montana, New Jersey, New York, Rhode Island, and Vermont) have issued executive orders establishing state-specific net neutrality obligations. There is significant variation among these state measures.

The Vermont Attorney General has agreed to hold off net neutrality litigation in that state pending a decision in the California case, according to ACA Connects. The association and other organizations entered a stipulation last week to stay enforcement of the Vermont law pending further discussions between the groups and Vermont officials.

Gary Arlen

Contributor Gary Arlen is known for his insights into the convergence of media, telecom, content and technology. Gary was founder/editor/publisher of Interactivity Report, TeleServices Report and other influential newsletters; he was the longtime “curmudgeon” columnist for Multichannel News as well as a regular contributor to AdMap, Washington Technology and Telecommunications Reports. He writes regularly about trends and media/marketing for the Consumer Technology Association's i3 magazine plus several blogs. Gary has taught media-focused courses on the adjunct faculties at George Mason University and American University and has guest-lectured at MIT, Harvard, UCLA, University of Southern California and Northwestern University and at countless media, marketing and technology industry events. As President of Arlen Communications LLC, he has provided analyses about the development of applications and services for entertainment, marketing and e-commerce.