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Net neutrality fight heads to California capital

The battle over net neutrality rules that were overturned in Washington last month moved into Sacramento on Wednesday.

State Sen. Scott Wiener, D-San Francisco, introduced a bill to require telecommunications companies doing business in the state to guarantee equal Internet access. The bill is a reaction to last month’s Federal Communications Commissiondecision to revoke nationwide net neutrality regulations.

“We will protect a free and open Internet in our state,” Wiener said in a tweet. “We won’t let the FCC undermine our democracy.”

Net neutrality is the principle that Internet companies not favor certain content over others — for example, speeding delivery of a video service they own while slowing down videos from rivals.

California joins similar efforts in New York and Washington state to write their own set of rules guaranteeing equal access to the Internet following the FCC’s 3-2 vote on Dec. 14 to overturn Obama-era net neutrality regulations. Supporters of the vote, including major Internet providers like Comcast, Verizon and AT&T, hailed that decision as one that will benefit consumers by removing a layer of unnecessary regulation enacted in 2015.

But opponents said the FCC’s reversal removes protections that prevent Internet companies from favoring some sites and apps over others.

“Net neutrality is essential to our 21st-century democracy,” Wiener said in a press release. “We won’t let the Trump-led FCC dismantle our right to a free and open Internet, and we won’t let them create a system where Internet providers can favor websites and services based on who pays more money.”

SB822 would try to use state Public Utilities Commission regulations governing telecommunications companies to force them to adhere to net neutrality rules.

According to a draft, that would include making net neutrality a requirement of cable franchise agreements, state consumer protection laws and the “state-granted right to attach small cell or other broadband wireless communications devices to utility poles.”

The bill would also require the state to buy Internet services from companies that practice net neutrality.

Monkeybrains, a San Francisco Internet services company whose management has long supported net neutrality, hailed Wiener’s action, though company partner Alex Menendez said provisions to strengthen consumer protection and unfair business practice laws were “pretty ambiguous.”

“How are they going to ‘strengthen’ legislation?” he said in an email. “What recourse will consumers have? How will enforcement work?”

Wiener listed 10 co-authors, all Democrats, in the Senate and Assembly. But even if the bill finds enough votes in both houses, there are still potential roadblocks and other unknown factors in its path.

For instance, the FCC has yet to publish its final ruling on net neutrality, although that is expected any day. However, that final ruling is also expected to include a provision that preempts any state-enacted net neutrality rules.

In an email, Wiener said he was “confident we have the right to enact strong Internet protections in California.”

The FCC’s authority over state laws is “an open question,” said Tejas Narechania, an assistant professor at the UC Berkeley School of Law and a former FCC special counsel who focused on net neutrality issues. Narechania left the FCC in 2013, before the now-overturned net neutrality rules were enacted.

However, he noted the last time the FCC tried to preempt state laws in North Carolina and Tennessee, in a case involving restrictions on high-speed Internet services, a federal appeals court in 2016 ruled in favor of the states. Then-Commissioner Ajit Pai at the time argued against the FCC asserting its dominance over state laws; Pai, now the panel’s chairman, pushed the vote to repeal net neutrality laws.

“There’s an argument to be made that the FCC doesn’t have the preemption authority it claims, especially because the FCC now has to clear a pretty high bar,” Narechania said in an email.

The proposed California bill could also succeed because it relies on its own regulatory, franchising and purchasing power and “the FCC will have to show it preempts all of this,” he said.

Chris Lewis, vice president of the consumer rights group Public Knowledge, noted that Internet companies could also challenge a state law like California’s in court. Conversely, the FCC’s ruling is also expected to be challenged in court by net-neutrality proponents, including the attorneys general of several states, including California.

And while Lewis generally applauded Wiener’s bill, he said the controversy might be fully settled only if Congress decides to overrule the FCC.

“We appreciate the efforts at the state level, but it can never protect everyone because every state could have a different set of rules,” Lewis said.

Wiener said California still needed to take action.

“While a lot is happening with lawsuits, state bills, and potential congressional action, California can’t sit by and wait for something to possibly happen,” he said. “We have control over our own fate, and we can enact smart regulations to protect net neutrality right here. If something happens to fix this issue nationally, that’s great news.”

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