Morning Canary – CA Exerts States Rights with Net Neutrality Law

Canary. Photo by 4028mdk09.

“California Governor Jerry Brown today signed net neutrality legislation into law, setting up a legal showdown pitting his state against Internet service providers and the US government,” ARS Technica reported Sunday evening.

Advocates for net neutrality argue that providers “could create fast lanes and slow lanes that favor their own sites and apps or make it harder for consumers to see content from competitors.”

As the CA bill moved through their state legislature, FCC Chairman Ajit Pai said at the time the move was “illegal” and “poses a risk to the rest of the country,” in a speech he gave to the Maine Heritage Policy Center, calling the California law makers, “nanny-state California legislators.”

California State Senator Scott Wiener (D-San Francisco), author of the net neutrality bill, responded to Pai comments saying, “Chairman Pai abdicated his responsibility to ensure an open Internet,” adding, “Unlike Pai’s FCC, California isn’t run by the big telecom and cable companies, … Pai can take whatever potshots at California he wants. The reality is that California is the world’s innovation capital, and unlike the crony capitalism promoted by the Trump administration, California understands exactly what it takes to foster an open innovation economy with a level playing field.”

In response to California’s Governor Brown’s signing the bill into law on Sunday, Wiener said in a statement to the press, “While the Trump administration does everything in its power to undermine our democracy, we in California will continue to do what’s right for our residents.”

The Washington Post reported that in response, the US government “immediately sues to block it,” Sunday night, adding that US Attorney General said in a 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.”

Washington Post; Sept. 30, 2018


In 2017, after killing net neutrality, Pai told reporters in a phone briefing that it was “a victory for broadband providers that asked for widespread preemption of state laws” which echoed the arguments of “Comcast, Verizon, and mobile industry lobby group CTIA,” ARS reported back on November 21, 2017.

But in 2016, the Obama administration’s FCC in 2015 “voted to block laws in North Carolina and Tennessee to prevent municipal broadband providers from expanding outside their territories,” had their “preemptive” authority struck down when then FCC Chairman Tom Wheeler “claimed it could preempt the laws because Congress authorizes the commission to promote telecom competition by removing barriers to investment” in a unanimous ruling by the Sixth Circuit Court of Appeals.

The FCC’s preemption authority does have limits. A previous FCC decision to preempt state laws that restrict the expansion of municipal broadband was struck down by a federal appeals court. The FCC will almost certainly face lawsuits challenging the net neutrality repeal order, and the preemption of state laws could play a big role in litigation.

It’s not clear whether the FCC provided adequate notice to the public about the preemption plan. Today’s proposal stems from a Notice of Proposed Rulemaking (NPRM) that the FCC issued in May, but that proposal did not ask the public for input on preempting state net neutrality laws.

Pai argued in 2015 that the FCC violated federal administrative procedure rules by reclassifying ISPs as common carriers without providing adequate notice to the public beforehand. But in that case, the FCC did ask the public for input on whether it should impose common carrier regulations in an NPRM months before it voted. In the present case, the FCC did not ask for input on preempting state net neutrality laws at all.

ARS Technica; Nov. 21, 2018

Pai argued that broadband is “an information service instead of a telecommunications service” and states “cannot regulate information services.”

State Senator Wiener said that the Pai “abandoned its regulatory authority over broadband” and no longer has preemptive authority over state broadband laws.

“Specifically,” ARS reports, “the new California state law prohibits Internet service providers from blocking or throttling lawful traffic and from requiring fees from websites or online services to deliver or prioritize their traffic to consumers. The law also 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.”

According to the Associated Press, Oregon, Washington, and Vermont have net neutrality legislation, but that “California’s measure is seen as the most comprehensive attempt to codify the principle in a way that might survive a likely court challenge. An identical bill was introduced in New York.”

California will now have its legal authority to “impose its own net neutrality” tested and FCC Chairman Pai now will have his “preemptive” powers tested.

On A Side Note (Opinion)

I don’t necessarily have an opinion on this that has changed. This is what happens when this partisan back and forth goes on but no one tells the truth any longer.

Net Neutrality was passed when a bunch of bigTech went whining to bigGovernment Ds about those greedy bastid meanie pants bigProviders so bigGovernment reached into their crony bag of tricks and pulls out a telecommunications reg rabbit out and says, sure thing there, crony buddies, cough up some more of that lobbying dough.

Then partisan hacks Rs get in power and there go the bigProviders whining to bigGovernment Rs about those greedy bastid meany pants bigTech so big bigGovernment Rs reach into the bag and pull out an empty hand and says, sure thing there, crony buddies, cough up the lobbying dough and we’ll squash them like a bug for you.

Pai wanted to bitch and moan about FCC overreach when it’s the other guy, cheered when the 6th shut them down in 2016, but now he doesn’t like it when the shoe’s on the other foot.

Government – commerce collusion exemplified and on showcase for all to see. Rs only don’t like cronyism when Ds do it, but they’re all for cronyism for themselves, and vis versa.

Rs are all for states rights when it’s them exerting their states rights, but Ds, they’re just out there thwarting the constitution, and vis versa.

A pox on all of them, but I will still cheer states rights over a centralized power any day of the week, letter on the jersey be damned. But that is just me.

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