Perspectives from FSF Scholars
September 9, 2020
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Day of Reckoning Approaches for California Net Neutrality Law
by
Daniel Lyons
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[Below are the Introduction and Summary and the Conclusion to this latest FSF Perspectives. A PDF version of the complete Perspectives, with footnotes, is here.]
Introduction and Summary
In 2017, the Federal Communications Commission adopted the Restoring Internet Freedom Order (RIF Order), which repealed the Commission’s two-year-old net neutrality restrictions. This action spawned a flurry of activity in state legislatures that sought to re-impose those restrictions at the state level and subject the RIF Order to a death by a thousand paper cuts. Nowhere was this state activity more prominent than California, where Senate Bill 822 became a vehicle for net neutrality advocates not only to resurrect the requirements of the now-defunct 2015 Open Internet Order, but also to impose additional regulations that even the Obama-era FCC had rejected.
Unsurprisingly, the Justice Department challenged SB-822 in federal court in California, arguing that federal law preempted the state’s attempt to regulate the Internet from Sacramento. In response, California agreed to voluntarily stay enforcement of the statute while the D.C. Circuit heard Mozilla v. FCC, which was considering the validity of the FCC’s RIF Order. For almost two years, California’s bold net neutrality initiative has been in limbo, with supporters and critics alike waiting to see if the bill will ever amount to more than (in one commentator’s words) a “publicity stunt.”
With the Mozilla litigation now complete, the day of reckoning is approaching – and the California court is likely to find that much, if not all, of SB-822 is preempted. At a minimum, the Communications Act expressly preempts most of the regulations that SB-822 places on wireless companies. More generally, the state law interferes with the carefully calibrated federal broadband policy determined in the RIF Order, and on that basis should face conflict preemption by the Supremacy Clause. These claims, which Mozilla left open, are fatal to much, if not all, of California’s attempt to regulate broadband network management practices.
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Conclusion
Ultimately, SB-822 and similar efforts in other states are driven largely by policy disagreements with the Trump Administration. There are multiple avenues for opponents, even within state government, to influence federal policy. California could, and did, file comments in the RIF Order proceeding, and it participated actively in the Mozilla litigation testing the validity of the final order. Moreover, states generally may flex their regulatory muscle in many areas that the federal government cannot or will not regulate; indeed, the idea of states as “laboratories” for policies is a key component of “Our Federalism.”
But SB-822 is not limited to intrastate communications that the Communications Act places in the state’s wheelhouse, but instead regulates interstate communications in ways that the FCC has determined would be harmful to federal efforts. Preemption doctrines can, and should, cabin state power where experimentation becomes balkanization and interferes with an overarching federal objective.
* Daniel A. Lyons, a Professor at Boston College Law School, is a Member of the Free State Foundation's Board of Academic Advisors. The Free State Foundation is an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland.
Read the complete Perspectives, with footnotes, here.
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