Lawmakers promise new net neutrality bills will pass legal challenges

SACRAMENTO — A group of Democratic state lawmakers announced a renewed effort to pass net neutrality legislation this year with a promise.

“We know it will withstand a legal challenge,” said Assemblyman Miguel Santiago, D-Los Angeles, told a packed Capitol press conference Thursday.

The ability to survive in court has been a key issue around the months-long effort to pass net neutrality legislation at the state level. Long before the Federal Communications Commission abolished net neutrality at the federal level on June 11, attorneys and lawmakers debated how largely untested theories about federal preemption and intrastate commerce would play out.

Sen. Scott Wiener, D-San Francisco, led this effort. He told reporters time was running out on the legislative year and that it was incumbent on lawmakers to try to do something.

“We know that the federal government is not going to fix things in the foreseeable future,” Wiener said.

The two bills in question are even harder to evaluate because the latest versions aren’t in print yet, and likely won’t be before the Legislature returns from a monthlong recess on Aug. 6.

Wiener’s bill, SB 822, will be revised to include the main basic protections associated with the term “net neutrality.” This includes a ban on internet service providers speeding up, slowing down or blocking particular websites or types of applications, such as video. The proposed law would also ban them from charging content providers for access to “fast lane” communications with subscribers.

Services could not exempt websites they own from users’ monthly datacaps, a practice known as “zero-rating.”

A companion bill, SB 460, would require service providers that enter into contracts with the state comply with net neutrality principles. Nearly four dozen entities, mainly business groups and technology companies, oppose the current version of SB 822. This includes the California Chamber of Commerce, AT&T and the California Manufacturers and Technology Council.

The opponents say it would be expensive and cumbersome for companies to comply with state-level internet rules. They also argue that net neutrality rules at the state level would interfere with interstate commerce and be preempted by the Supremacy Clause of Article IV of the U.S. Constitution.

“We are disappointed that Chairman Santiago led an effort to continue with poorly conceived state specific net neutrality regulations,” said the California Cable & Telecommunications Association in a June 20 statement. “Unfortunately, SB 822 — and the proposed amendments — would inhibit investment and innovation in California. What the country needs is permanent bipartisan federal legislation.”

The statement was a reaction to SB 822 passing the Assembly Communications and Conveyance Committee. It also served to illustrate how unlikely bipartisan federal legislation is.

The version of the bill the telecommunications association objected to was one Wiener considered so weakened that he said he would likely not support it. Amendments added by the committee removed rules against zero rating and slowing traffic, for instance.

Wiener engaged in a public clash with the chair of that committee — who was also the person leading Thursday’s press conference with him, Santiago.

Speaking to reporters, Santiago acknowledged he had received hundreds of calls and emails opposing the weakening of the bill.

Anita Taff-Rice, founder of iCommLaw in San Francisco, a law firm specializing in the telecommunications industry, said some of the provisions announced Thursday were more likely to withstand legal scrutiny than others.

“The most clever strategies I’ve seen so far are the ones that really stick close to home in terms of the state’s power over the pocketbook,” Taff-Rice said.

For instance, she said SB 460 most closely mimics an approach tried or considered by several other states. Rather than trying to regulate the behavior of internet companies, these proposed laws simply announce who the state is willing to do business with.

This could be particularly influential if implemented by a large, rich state like California. She said it could even lead to a “race to the top,” as has been seen with internet privacy rules in Europe, as companies conform their rules to the largest, most lucrative markets.

Rules around zero rating and speed setting would appear to run afoul of federal control over interstate commerce, she said. Though she added that in a state like California, users and the companies they interact with are often engaged in intrastate commerce, meaning the state might win a court argument if the rules are limited enough.

Finally, she noted, compliance with any net neutrality rules could be difficult to monitor. “How do you know it’s everybody getting on Netflix or something the ISP has done to alter the throughput of its network?” she said.