California’s net neutrality law: Will it survive judicial review?

On Sunday California Governor Jerry Brown signed Senate Bill 822, the state’s stringent new net neutrality law. The California Internet Consumer Protection and Net Neutrality Act of 2018 has been described as restoring the Federal Communications Commission’s (FCC) 2015 Open Internet Order, though in some ways California’s law reaches further than the FCC did. Unsurprisingly, the US Justice Department promptly sued to block the state law, arguing it was preempted by the FCC’s new deregulatory approach to broadband regulation. This post will analyze the California law and the preemption argument that will determine whether it takes effect.

California’s stringent net neutrality rules

The FCC’s 2017 Restoring Internet Freedom Order prompted a flurry of activity designed to restore at the state level what had been repealed at the federal level. Net neutrality supporters described California’s SB-822 as the “gold standard” because of the tough stance it took on broadband providers. Like many other state efforts, SB-822 duplicates the 2015 Open Internet Order’s familiar prohibitions on blocking, throttling, and paid prioritization. It also resurrects the FCC’s vague and awkwardly worded restriction on unreasonably interfering with or disadvantaging the ability of consumers and internet content providers to reach one another. But in other ways the act goes further than the now-defunct FCC rules. For example, SB-822 imposes more significant restrictions on zero-rating and interconnection than the FCC did, and regulates other services (such as video or voice service) that a broadband provider offers over the same network.

California Governor Jerry Brown in Sacramento, California, January 25, 2018 – via REUTERS