A swathe of Internet service provider trade groups banded together on Wednesday to sue the State of California and its new net neutrality law.
The message most likely is meant not just for California, but also for 20-plus other states with their own net neutrality laws on the books or in the works. If this (expensive, time-consuming) legal endeavor works against the west coast state, perhaps others will be less anxious to use their own resources against the Federal Communications Commission (FCC) or the ISP industry. (See States Sue FCC Over Net Neutrality Rollback.)
After all, there was no messing about. Within 24 hours of the passing of the Golden State's new net neutrality law, some of the telco and cableco industries' heaviest hitting lobbying and industry groups acted on their own plan: file a lawsuit. (See FCC Strikes Another Nail in State's Rights.)
Plaintiffs include USTelecom, CTIA – the Wireless Association, NCTA – the Internet & Television Association and the American Cable Association, with little doubt more organizations will join. Members of these groups include a Who's Who of Tier One operators and telcos such as AT&T, CenturyLink, Charter Communications, Comcast, Sprint, T-Mobile and Verizon.
In Case 2:18-at-01552, the plaintiffs charge Attorney General of California Xavier Becerra, in his official role, of:
Unconstitutional state regulation via the enacting of SB-822, the California Internet Consumer Protection and Net Neutrality Act of 2018, which directly regulates the provision of broadband Internet access services (BIAS)
State attorneys general can enforce the Federal Communications Commission's 2018 Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order regulations if any provider or operator is seen to be practicing deceptive or unfair trade practices; they must enforce in a manner consistent with federal law
Because Internet access is a multi-state "information service," its governance should revert to the "light touch" regulatory environment that existed before the 2015 Order
The FCC required ISPs to disclose blocking, throttling and other practices "to protect Internet openness through a policy of disclosure"
The 2018 ruling "preempt[s] any state or local measures that would effectively impose rules or requirements that [the FCC has] repealed or decided to refrain from imposing in order or that would impose more stringent requirements for any aspect of broadband service"
It's a Harmony in My Head
Is she happy because California returned net neutrality to consumers? Or because ISP trade groups are fighting for the FCC's "light touch" regulatory approach? Or she really likes this song... (Source: Pexels)
California's rule bans "zero rating of traffic," which exempts some content – like texting your ISP if you don't have an unlimited text plan or watching HBO if you have a free premium TV channel in your deal – from users' data allowance. The rule also places "ambiguous restrictions on agreements for the exchange of Internet traffic with edge providers and other Internet network operators," the operators charge.
"Zero-rating… gives users more data for their money. Paid interconnection agreements directly with BIAS providers allow edge providers to bypass the middlemen and content distribution networks they would otherwise pay to distribute their content, while also allowing them to bring their content closer to the computers, tablets, and smartphones of the consumers who wish to use it"
In addition to going against the FCC's rule by making a new rule, SB-822 "imposes impermissible common carrier regulations -- that is, categorical bans affecting how providers offer service that leave 'no room at all for individualized bargaining' "
Violates the "dormant" or "negative" Commerce Clause of the US Constitution because it regulates Internet services, the majority of which involve interstate (or international) communications and therefore can't be separated from intrastate communications.
"SB-822's ambiguous restrictions on paid interconnection arrangements with edge providers expose to potential liability existing business practices that provide benefits to consumers, edge providers, and BIAS providers alike. No less importantly, the Supreme Court has warned against the burden imposed on interstate commerce caused 'by subjecting activities to inconsistent regulations," the lawsuit said. "In the context of the Internet in particular, compliance with a patchwork of inconsistent state laws is inherently burdensome and likely impossible."
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