DOJ drops challenge to California’s net neutrality law

The Department of Justice on Monday withdrew the Trump administration's lawsuit challenging California's net neutrality statute. Telecom companies that have filed a separate suit must now assess if the department's dismissal will impact their case.

The department filed the lawsuit against the California Internet Consumer Protection and Net Neutrality Act of 2018, which takes broad steps to impose regulations such as barring internet service providers from slowing website speeds, blocking access to certain websites and charging for large websites.

Attorney General Xavier Becerra applauded President Joe Biden administration's decision to withdraw the case.

"This action affirms the importance of a free and open internet to maintain a competitive marketplace and a fair democracy," Becerra said.

SB-822 was signed into law by Gov. Jerry Brown after the Federal Communications Commission repealed President Barack Obama-era net neutrality rules. Hours later, President Donald Trump's administration sued the state, arguing that the law would violate federal authority by interfering with interstate commerce. U.S. v California, 18-cv-02660-JAM-DB (E.D. Cal., filed Sept. 30, 2018).

Federal Communications Commission Acting Chairwoman Jessica Rosenworcel said in a statement that she is pleased with the decision to withdraw the lawsuit.

"When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws," Rosenworcel said. "By taking this step, Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land."

Katharine Trendacosta, associate director of policy and activism, said that after Verizon was accused of throttling internet speeds to firefighters during the Mendocino Complex fire in 2018, it became clear that oversight was essential.

"If there's something we've learned from the pandemic about all this, it is that net-neutral access to the internet is absolutely vital," Trendacosta said. "You cannot have your ISP [internet service provider] deciding what you see and where you go."

In the same court, trade groups representing the nation's largest telecommunications firms also sued in 2018 to block California's law.

The complaint cites many of the same arguments raised in the lawsuit filed by the Trump administration. American Cable Association et at. v. Becerra, 2:18-cv-02684-JAM-DB (E.D. Cal., filed Oct. 3, 2018), Each claimed that SB 822 is preempted by federal laws.

Following the dismissal of the DOJ's lawsuit, U.S. District Judge John A. Mendez ordered the parties in the telecom companies case to file a joint status report by Feb. 16, stating if the government's dismissal affects their case.

The telecom case was filed by four firms: Kellogg Hansen Todd Figel & Frederick PLLC, Latham & Watkins LLP, Lewis & Llewellyn LLP and Mololamken LLP. Latham Watkins declined to comment. The others could not be reached for comment.

Trendacosta said that she does not believe the companies' case will be impacted.

"The internet service providers have shown over and over again, a willingness to fight any attempt to enshrine net neutrality into law, despite the fact that it is an incredibly popular policy across the aisle, and is, in fact, one of the building blocks of the internet," Trendacosta said.

Anita Taff-Rice, an attorney with ICommLaw in Contra Costa, said that the DOJ dropping its lawsuit removes an important obstacle to California's efforts to protect consumers from internet service providers blocking or hindering access to content.

"The FCC had taken the nonsensical legal position that it lacked jurisdiction to enact or enforce network neutrality rules, but yet expressly preempted states from enacting their own network neutrality laws," Taff-Rice said. "The D.C. Circuit Court of Appeals saw that argument for what it was -- ridiculous. Now that the DOJ has withdrawn its lawsuit, California and telecom carriers who support network neutrality have a clear pathway."