California Gov. Jerry Brown signed a state broadband internet neutrality bill into law on Sunday, and within hours the U.S. Department of Justice sued to block its implementation.
California legislators passed Senate Bill 822, the “California Internet Consumer Protection and Net Neutrality Act of 2018,” after Federal Communications Commission Chairman Ajit Pai suspended federal net neutrality rules in place since 2015 that prohibited internet service providers from placing restrictions on access to or delivery of broadband internet service.
Within hours after Brown’s signature, the Justice Department announced it had filed a lawsuit against the state of California alleging that SB 822 “unlawfully imposes burdens on the Federal Government’s deregulatory approach to the Internet.”
The announcement was made by U.S. Attorney General Jeff Sessions, Acting Associate Attorney General Jesse Panuccio, Assistant Attorney General Joseph H. Hunt for the Justice Department’s Civil Division, and Federal Communications Commission Chairman Ajit Pai.
In 1996, a bipartisan Congress decided that the internet should remain “unfettered by Federal or State regulation.” Since 2002, the FCC has accordingly classified broadband Internet access as an “information service” that is exempt from public-utility regulations.
“The FCC briefly departed from this classification in a 2015 Order, which imposed restrictions on the freedom of the Internet,” according to the DOJ statement.
“In 2018, the FCC returned to its prior light-touch framework, ensuring that Internet access services are free and guided by a uniform set of federal rules, rather than by a patchwork of state and local regulations,” the DOJ statement said.
In response to the FCC’s rollback of the 2015 rules, California legislators introduced SB 822, which, according to the state legislative counsel’s digest, “…would prohibit fixed and mobile Internet service providers, as defined, that provide broadband Internet access service, as defined, from engaging in specified actions concerning the treatment of Internet traffic.
“The act would prohibit, among other things, blocking lawful content, applications, services, or nonharmful devices, impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device, and specified practices relating to zero-rating, as defined,” the digest reads.
“It would also prohibit fixed and mobile Internet service providers from offering or providing services other than broadband Internet access service that are delivered over the same last-mile connection as the broadband Internet access service, if those services have the purpose or effect of evading the above-described prohibitions or negatively affect the performance of broadband Internet access service,” the digest reads.
However, according to the DOJ statement, “The United States concluded that California, through Senate Bill 822, is attempting to subvert the Federal Government’s deregulatory approach by imposing burdensome state regulations on the free Internet, which is unlawful and anti-consumer.”
In filing the complaint Sunday, Sessions issued the following statement:
“Under the Constitution, states do not regulate interstate commerce — the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order. We will do so with vigor. We are confident that we will prevail in this case—because the facts are on our side.”
Pai issued the following statement:
“I’m pleased the Department of Justice has filed this suit. The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area. And the U.S. Court of Appeals for the Eighth Circuit recently reaffirmed that state regulation of information services is preempted by federal law.
“Not only is California’s Internet regulation law illegal, it also hurts consumers. The law prohibits many free-data plans, which allow consumers to stream video, music, and the like exempt from any data limits. They have proven enormously popular in the marketplace, especially among lower-income Americans. But notwithstanding the consumer benefits, this state law bans them.
“The Internet is free and open today, and it will continue to be under the light-touch protections of the FCC’s Restoring Internet Freedom Order. I look forward to working with my colleagues and the Department of Justice to ensure the Internet remains ‘unfettered by Federal or State regulation,’ as federal law requires, and the domain of engineers, entrepreneurs, and technologists, not lawyers and bureaucrats.”
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