Some major ISP associations are filing suit against the state of California over its newly-signed-into-law tough new network neutrality rules.
The NCTA-The Internet & Television Association, American Cable Association, CTIA and USTelecom are joining in a suit against the new law, which was signed by Gov. Jerry Brown Sept. 30—it passed Aug. 31.
The Department of Justice filed its suit Sunday (Sept. 30) against the law in the U.S. District Court for the Eastern District of California and the ISPs literally followed suit in the same court.
"This case presents a classic example of unconstitutional state regulation," they told the court..
"California’s attempts to revive—and indeed expand—a repealed federal regulatory regime are plainly preempted. Under the Supremacy Clause of the United States Constitution," they said. The California rules apply to interconnections between providers as well as consumer-facing service, and also prohibits zero-rating plans, which the FCC's 2015 Open Internet Order did not.
They also say the California law "imposes impermissible common carrier regulations" by imposing categorical bans on conduct.
"The Communications Act expressly prohibits the imposition of common carrier obligations on providers of information services and on providers of private mobile services," they said. The FCC classifies wireless broadband as a privacy motile service.
“The nation’s broadband providers are the innovation engine of America’s digital economy and remain committed to an open internet for consumers," the associations said in a joint statement on the suit. "We oppose California’s action to regulate internet access because it threatens to negatively affect services for millions of consumers and harm new investment and economic growth. Republican and Democratic administrations, time and again, have embraced the notion that actions like this are preempted by federal law. We believe the courts will continue to uphold that fundamental principle. Meanwhile, we will continue our work to ensure Congress adopts bipartisan legislation to create a permanent framework for protecting the open internet that consumers expect and deserve.”
While legislators agree they need to clarify the internet's regulatory status given that it has gone from "you've got mail" to the internet of everything (IoE).
The FCC made clear in rolling back the rules—in last fall's Restoring Internet Freedom order—that state efforts to re-regulate were preempted. AT&T, a USTelecom member, may be on the other side of the Justice Department on the Time Warner deal, but it is on the same side when it comes to whether states can re-regulate internet access in the face of a federal law that expressly prohibits it and takes precedence under the Supremacy Clause of the Constitution.
The California law restores the bright-line rules against blocking, throttling and paid prioritization, and the general conduct standard that the FCC under chair Ajit Pai eliminated in the Restoring Internet Freedom Order. The California law went even further, extending those rules to interconnections, which the FCC's 2015 Open Internet order, which implemented the rules, didn't even do.
Cable and telco ISPs had strongly opposed the bill, pointing out that the FCC's reg rollback preempted such efforts.
Specifically, the FCC said in the Restoring Internet Freedom order, that the order “preempt[s] any state or local measure that would effectively impose rules or requirements that [it] ha[s] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that [it] address[es] in this order.”
Other states are also taking steps to restore the FCC bright line rules against blocking, throttling and paid prioritization despite that FCC language.
In what should be a boost to the ISPs'—and Justice's—cases, the U.S. Court of Appeals for the Eighth Circuit last month affirmed that state efforts to regulate information services are preempted by federal law.
That decision came in Charter Advanced Services LLC v. Lange (the state of Minnesota's effort to regulate interconnected VoIP). A district court had concluded that because VoIP was an information service, Minnesota's attempt to regulate it was preempted, and the federal appeals court agreed.
The ISPs cited the decision in their suit: "As the Eighth Circuit recently reiterated, 'any state regulation of an informationservice conflicts with the federal policy of nonregulation,’ so that such regulation is preempted by federal law.”
ISPs are looking for a similar result from the California court given that the Restoring Internet Freedom reclassified internet access as information service.
The American Cable Association had already signaled it was solidly behind legal action to assert the FCC's preemption authority.
“The American Cable Association supports the lawsuit brought by the Department of Justice against California to overturn the state’s internet regulation legislation," ACA president Matt Polka said following DOJ's suit. "The California law seeks to regulate interstate commerce and plainly intrudes on federal authority. Moreover, if the California law were permitted to go into effect, it would harm consumers by stymying small and medium-sized ISPs' investments in broadband networks in the state and the deployment of innovative services."