Net Neutrality Fight Turns to California

California, which has the largest economy in the country and the fifth-largest in the world, has launched a David-and-Goliath battle against the U.S. government in the continuing fight over net neutrality.

As promised, Billshark has been watching this important issue closely and would like to bring you up to date.

Recap

Net neutrality is the principle that more powerful Internet Service Providers (ISPs) should not be allowed to give preferential treatment to their own programming and services while charging other users a premium (read: bribe) to obtain similar treatment on their networks, and slowing down or even shutting out completely competitors’ content.

One media analyst described the problem this way to CBS News:

“... an ISP could demand that a service like Yelp pay $50,000 a month to reach its subscribers. That could lead to the creation of ‘fast lanes’ and ‘slow lanes,’ where companies [that] agree to pay that fee would be given preferred carriage, with its content delivered faster to the ISP’s customers. Smaller companies that don’t have the resources to pay up could be shunted into the ‘slow lane.’”

Why should you care about net neutrality?

Because if ISPs charge companies extra fees for faster service, those fees will eventually be passed along to the consumer; that is, you. In addition, certain websites could slow down, or be unavailable entirely. If you own a website, it means you could lose your Google search engine optimization (SEO) ranking, because Google gives slower sites a lower ranking.

The Obama administration eventually agreed with this principle, and in 2015 put in place rules that the big telecommunication companies—including Verizon, AT&T, and Comcast—must treat all web traffic carried on their services as equal. In December of 2017, the Trump administration rescinded these rules, saying the government shouldn’t be “micromanaging” the Internet.

In reaction to this, numerous states have acted to ensure net neutrality within their borders. Three states have already passed net neutrality legislation, while bills are pending in many others. What makes California’s law so pivotal in this fight is not only the power derived from the size of its economy, but the fact that its bill went farther than those of any other states.

CNN reports that the 2015 Federal Communications Commission (FCC) rules contained a two-page summary, which other states have relied on to craft their legislation. California’s law not only incorporated those two summary pages, but much of the 300 other pages that accompanied the older FCC ruling, which contained additional protections and clarifications on how its rule worked. If it survives not only the Justice Department lawsuit, but expected lawsuits from various ISPs, its bill will be a model for other states to emulate.

“Most people don’t understand how hard it is to do a solid net neutrality law,” Barbara van Schewick, a professor at Stanford Law School, told CNN. “What’s so special about California is that it includes not just two pages of rules, but all of the important protections from the text of the order and as a result closes the loopholes.”

Nevertheless, no sooner had California Gov. Jerry Brown signed the law into effect on September 30 than the U.S. Justice Department filed a lawsuit to stop it.

“Under the Constitution, states do not regulate interstate commerce—the federal government does,” Attorney General Jeff Sessions said in a statement. Which normally would be true, but when Trump’s FCC rescinded the Obama-era FCC rules, part of its reasoning was based on the contention that the FCC had no power to regulate broadband ISPs.

“An agency that has no power to regulate has no power to preempt the states, according to case law,” van Schewick said. “When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband Internet access providers. That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protections.”

“Courts have consistently held that when the federal government lacks authority to regulate, it cannot preempt states from regulating,” Andrew Schwartzman, a lecturer in public interest law at Georgetown University, told The Washington Post.

Other legal scholars differ. States already independently regulate cable TV and telephone service, but various court rulings on other interstate commerce matters like airline regulation seem to support the Justice Department’s stance on net neutrality. So the outcome of the California case remains to be seen.

The ISPs, by the way, say it’s not fair to ask them to deal with differing regulations state by state. That may be true, but since they were the ones that lobbied the FCC to have the net neutrality rules blocked in the first place, they may have to live with the result. The alternative is an Internet Wild West where only the Golden Rule applies: “He who has the gold, rules.” In other words, if you have enough money, you have all the power, while less affluent users are pushed aside.

Billshark will not only continue to keep you apprised of this situation and how it may affect your wallet, but continue to offer the best bill negotiating service available to save you serious money on your bills.