Ever since the FCC scrapped Obama-era net neutrality policies, pro-neutrality advocates have been looking for ways to unscrap them. The state of California has just attempted to do that with a new law signed by Governor Jerry Brown that essentially reinstates the Obama-era policies at state level will require all telcos and ISPs offering services in the state to comply with them starting January 1.
The US Dept of Justice immediately sued California, arguing that no state can pre-empt FCC policy and demanding an injunction prohibiting the law from taking effect until the case is decided.
All of which raises two good questions: (1) can states legally set their own neutrality policies, and (2) if they could, would it even work?
The first question is of course at the heart of the California/DOJ case. In a sense, it’s also at the heart of the lawsuits that other states have launched against the FCC, which argue that the FCC’s 2018 order – which also declared that states can’t pre-empt its policy with their own – is invalid because the FCC itself has said it doesn’t have the authority to regulate broadband Internet service, so how can it then presume to have the authority to tell state governments they can’t regulate it either?
FCC Commissioner Ajit Pai has weighed in on that point, saying that the Internet “is inherently an interstate information service. As such, only the federal government can set policy in this area.”
The DOJ lawsuit argues that the FCC order should be presumed valid until those lawsuits are resolved, and in any case, the California law not only violates the order but goes above and beyond the original Obama-era rules by outlawing certain types of zero-rating. What’s more, because it’s infeasible for telcos to comply with different net neutrality laws in different states, the effect of the California law is to create a national policy by default, which it says is illegal.
Which brings us to the second question: is it feasible for operators and ISPs to comply with 50 different sets of net neutrality regulations within the same country?
Maybe on a purely technical level it could be done, but it would be incredibly complex and expensive for any service provider to bother trying – the far easier option would be (as the DOJ fears) to pick the most stringent net neutrality policy in the country and comply with that, which would ensure compliance with the others.
Even if ISPs could somehow comply with 50 flavors of net neutrality, I have no idea how states would actually enforce them. Imagine being a mobile customer in California, roaming to Arizona and finding yourself throttled whilst trying to access Netflix on your device – whose jurisdiction are you under? And what if the fault is that Netflix is the one doing the throttling via a data center in a New Mexico?
It’s interesting that the DOJ is going after California specifically when it’s not even the first US state to pass its own net neutrality law or policy. According to the National Conference of State Legislatures:
Legislators in 30 states have introduced over 72 bills requiring internet service providers to ensure various net neutrality principles […]
Note that in that latter example, none of those orders or laws are nearly as tough as California’s – they don’t prohibit zero rating, and generally allow for reasonable bandwidth management. California has been signalling its intent to pass a tough neutrality law for awhile now, so it’s possible the DOJ has been waiting for this case specifically to take the state-neutrality fight to the courts.
In any case, the NCSL data shows that the US is already headed down the path to a very fractured regulatory landscape on net neutrality, and that’s bad news for everyone. You may be in favor of neutrality, but a jumbled hodgepodge of policies isn’t a great way to achieve that. You really need a coherent and comprehensive national policy to make it work.
At the same time, the current FCC policy is not that, and it’s important to note that the fragmented state-by-state approach is happening in the absence of any meaningful federal policy. The prospect of 50 shades of net neutrality (sorry) should be a wake-up call to the FCC and Congress of the necessity of updating federal communications laws so that the US government can create a net neutrality policy that works for everyone.