California can start enforcing the net neutrality law it enacted over two years ago, a federal judge ruled yesterday in a loss for Internet service providers.
Broadband-industry lobby groups’ motion for a preliminary injunction was denied by Judge John Mendez of US District Court for the Eastern District of California. Mendez did not issue a written order but announced his ruling at a hearing, and his denial of the ISPs’ motion was noted in the docket.
Mendez reportedly was not swayed by ISPs’ claims that a net neutrality law isn’t necessary because they haven’t been blocking or throttling Internet traffic.
“I have heard that argument and I don’t find it persuasive,” Mendez said, according to The Hollywood Reporter. “It’s going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [court case over the FCC’s repeal of net neutrality]. I don’t place weight on the argument that everything is fine and we don’t need to worry.”
Mendez, who was nominated by President Bush in 2008, also said, “This decision today is a legal decision and shouldn’t be viewed in the political lens. I’m not expressing anything on the soundness of the policy. That might better be resolved by Congress than by federal courts.”
The industry lobby groups’ lawsuit against California will continue, but the state can enforce its law while the case is still pending. California Attorney General Xavier Becerra praised the ruling, saying it means that “California can soon begin enforcement of SB 822,” the net neutrality law.
“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,” Becerra said.
The lawsuit against California was filed by the major broadband-industry lobby groups representing wired and mobile Internet providers. Those groups are the American Cable Association, CTIA-The Wireless Association, NCTA-The Internet & Television Association, and USTelecom.
“Today’s federal court ruling allowing California to enforce our net neutrality law is a huge victory for open access to the Internet, our democracy, and our economy,” said Sen. Scott Wiener (D-San Francisco), who introduced California’s net neutrality legislation. “The Internet is at the heart of modern life. We all should be able to decide for ourselves where we go on the Internet and how we access information. We cannot allow big corporations to make those decisions for us.”
California’s net neutrality law was also challenged by the Trump administration’s Department of Justice. President Biden’s DOJ voluntarily dropped the lawsuit, leaving the broadband-industry case as the remaining legal obstacle for California.
When the industry and DOJ filed their lawsuits in 2018, California agreed to suspend enforcement of the state law until the end of litigation over then-Federal Communications Commission Chairman Ajit Pai’s actions against net neutrality regulation. Pai’s repeal of FCC net neutrality rules was subsequently upheld, but he lost his attempt to preempt all state laws.
Despite the FCC’s loss on preemption, the Trump administration and broadband industry resumed their fight against California, claiming the state law couldn’t be enforced because the FCC has “exclusive responsibility” for regulating interstate communications and “Internet communications are inherently interstate.” After the Biden administration dropped the US lawsuit against California, the state said that “the United States’ voluntary dismissal of its lawsuit underscores Defendant’s arguments that SB 822 is not preempted.”
The California law prohibits Internet service providers from blocking or throttling lawful traffic. It also prohibits requiring fees from websites or online services to deliver or prioritize their traffic to consumers, bans paid data cap exemptions (so-called “zero-rating”), and says that ISPs may not attempt to evade net neutrality protections by slowing down traffic at network interconnection points.
FCC gave up role regulating broadband
California still has to win the court case to avoid a future ruling that could overturn its net neutrality law. But with a victory over the ISPs’ request for a preliminary injunction, California and its supporters say they are confident in their arguments.
Judge Mendez “found that the law is on a solid legal foundation and that the ISPs trying to overturn it are not likely to prevail,” said Stanford Law Professor Barbara van Schewick.
“The previous Federal Communications Commission ensured this outcome when it decided it had no authority over broadband,” said John Bergmayer, legal director at consumer-advocacy group Public Knowledge. “The DC Circuit [federal appeals court] has already made it clear that without the power to regulate, the FCC has no power to prevent states from regulating. Broadband providers nevertheless rushed to court to prevent states from exercising their traditional consumer-protection role. Judge Mendez has rightly rejected their arguments.”
The four broadband lobby groups that filed the lawsuit said in a joint statement that they “will review the court’s opinion before deciding on next steps,” according to The Washington Post.
“A state-by-state approach to Internet regulation will confuse consumers and deter innovation, just as the importance of broadband for all has never been more apparent,” the industry groups said. “We agree with the court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet.”