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Big Win for Open Internet as Court Upholds California Net Neutrality Law – Kenny Stancil

Progressives rejoiced Friday after a U.S. Court of Appeals upheld California’s net neutrality law, rejecting an industry-funded challenge that sought to prevent the state from implementing protections enacted in the wake of the Trump administration’s gutting of federal open internet rules.

“Eat shit, AT&T!”

Digital rights group Fight for the Future, which played a key role in mobilizing grassroots support for California’s net neutrality law—widely considered the nation’s strongest—noted in a statement that “telecom giants like AT&T and Comcast spent millions of dollars lobbying against S.B. 822. They even funded astroturf groups that spammed senior citizens with robocalls. And surely they spent big money on the attorneys who just lost this case for them.”

“The California net neutrality law is now clearly enforceable, and bars telecom companies from blocking, throttling, and paid prioritization, abusing their gatekeeper power in interconnection, or engaging in ‘zero rating’ scams,” the group added. “The court’s decision also clearly paves the way for other states to impose their own net neutrality protections.”

Evan Greer, director of Fight for the Future, added, “Eat shit, AT&T!”

Former President Donald Trump tapped Ajit Pai to lead the Federal Communications Commission (FCC) on the fourth day of his term, and by December 2017, the corporate-friendly commissioner was giving internet service providers (ISPs) the power to block or slow down certain websites while opening the potential to charge extra fees for access to “fast lanes” that would betray the bedrock principle of treating online traffic equally.

State lawmakers in Sacramento responded to the Trump administration’s overturning of Obama-era net neutrality rules by passing the California Internet Consumer Protection and Net Neutrality Act. Though the bill was signed into law by then-Gov. Jerry Brown (D) in 2018, it didn’t take effect until last year.

As Reuters noted, “California had agreed not to enforce the law while legal proceedings were ongoing.” It wasn’t until February of 2021 that President Joe Biden’s Department of Justice (DOJ) withdrew the lawsuit filed by Trump’s DOJ.

Media reform advocacy group Free Press—which spent the past two years working with Access Now, Mozilla, New America’s Open Technology Institute, and Public Knowledge to file amicus briefs at district and appellate courts in defense of California’s legislation—explained Friday that “lawyers representing ISPs had made meritless claims that the Trump FCC’s decision preempted state laws in this field, preventing states from stepping in to protect internet users exposed by the 2017 federal repeal.”

“This decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”

In its ruling, meanwhile, the Ninth Circuit Court of Appeals argued—in keeping with a district court’s previous decision—that since the FCC in 2018 reclassified internet services as more lightly regulated information services, it “no longer has the authority to regulate in the same manner that it had when these services were classified as telecommunications services.”

John Bergmayer, legal director at Public Knowledge, called the Ninth Circuit’s opinion “a great decision and a major victory for internet users in California and nationwide.”

“The court rightly found that when a federal agency determines that it has no authority over a service, it necessarily also loses the ability to preempt state laws on that topic,” said Bergmayer.

Matt Wood, vice president of policy and general counsel at Free Press, praised the judges for dismissing “a bevy of pointless phone-and cable-company arguments that have now been rejected by courts on both coasts.”

“This decision is a huge step forward,” said Wood, “but the California law had an impact even before it cleared this latest court hurdle.”

“Industry lobbyists and other net neutrality opponents have argued, loudly but cynically, that the repeal of the FCC’s rules had no impact,” he continued. “But the passage of this strong state law meant ISPs still had to respect open internet principles even before this latest victory, because they knew their stall tactics in the Ninth Circuit were likely to fail, as they now have twice.”

“But while today’s ruling is great news, the job isn’t done,” said Wood, who added that “this win is significant because it offers protections to people in our most populous state and drives the national conversation forward.”

While applauding Friday’s ruling as “a significant victory in the fight for a free and open internet,” Sen. Ed Markey (D-Mass.) announced that he intends to introduce legislation that “will make net neutrality the law of the land.”

Newly confirmed FCC Chair Jessica Rosenworcel said Friday that restoring net neutrality rules nationwide is precisely what the federal government needs to do.

To make such reform likely, however, the U.S. Senate must finish rounding out the FCC, which still has a partisan 2-2 divide after Biden waited a historically long time to designate a permanent chair and nominate a candidate to fill the last seat on the five-person board.

“While today’s ruling is great news, the job isn’t done.”

The Senate Commerce Committee is set to vote on Biden’s FCC pick Gigi Sohn—a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy—next week.

Ars Technica reported last month, however, that Republicans are “mounting a serious challenge” to Sohn, making Democratic unity key to advancing the nominee who has, according to The Hill, “a history of advocating for open and affordable communications networks.”

Wood, for his part, stressed that “we still need the Biden FCC to reclaim its authority not just for nationwide open internet rules, but for policies promoting affordable, resilient, just, and reasonable internet connections for everyone.”

“That starts with the U.S. Senate moving quickly to confirm Gigi Sohn as the FCC’s fifth commissioner so the agency can begin to restore these essential safeguards,” he said. “After the Commerce Committee vote on her nomination next Wednesday, we need swift action on the floor to put the FCC fully back to work.”

Once the FCC is fully staffed, Bergmayer said, the agency should “put into place rules at least as strong as California’s nationwide,” which would render “some state measures unnecessary.”

“But even after that happens,” he added, “this decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”