US judge rejects cable industry challenge to state’s net neutrality law

A federal judge on Tuesday rejected a bid by cable companies to enjoin California's net neutrality law. While ruling from the bench, U.S. District John A. Mendez also sought to draw attention to the shortage of judges in the Eastern District of California. He said there are so many cases he doesn't have time to issue more than a bench ruling, although his decision is likely to be appealed.

The plaintiffs are seeking to overturn SB 822. This is a 2018 state law that bars internet providers from favoring some content and users over others. The law, also known as the California Internet Consumer Protection and Net Neutrality Act of 2018, was meant to replace federal net neutrality rules that went into effect in 2015. The Federal Communications Commission under President Donald Trump repealed these rules three years later.

Both the Trump administration and industry groups sued to block the state law. But President Joe Biden's Department of Justice dropped their case earlier this month. United States v. California, 2:18-cv-02660-JAM-DB (E.D. Cal., filed Sept. 30, 2018).

Mendez agreed with plaintiffs' arguments that this decision should have no bearing on the current case, American Cable Association v. Becerra, 2:18-cv-02684-JAM-DB (E.D. Cal., filed Oct. 3, 2018).

He began by noting the large number of amicus curiae briefs filed on both sides, saying they helped educate him on the relevant technology. He also noted how politically charged the case is. Yet neither aspect played any role in his decision, he added.

"This is a classic preemption case, and that's what we'll focus on here," Mendez said.

It quickly became clear Mendez wasn't accepting the plaintiffs' arguments that internet providers would suffer irreparable harm under SB 822. Instead, he accepted the state's arguments that the federal government could preempt state level internet regulations if it chose to, but have not, leaving the plaintiffs unlikely to succeed on the merits.

Mendez also lamented about how much the case rests on the federal Communications Act of 1934.

"If Congress had intended to preclude both state and federal regulation, it would presumably have said so clearly," Mendez said, later adding, "This case raises issues that might be better resolved by Congress than the federal courts."

He sparred for much of the hearing with Matthew A. Brill, a partner with Latham & Watkins LLP in Washington, D.C.

"The 9th Circuit has held repeatedly that where there's a likely showing of a constitutional violation, it is always in the public interest to enjoin a state law that is unconstitutional," Brill said.

But Mendez shot back that his clients had failed to show a direct harm from state action. The state was not attempting to set prices or limit that type of services these companies could offer, he said. He also rejected Brill's arguments the law was not needed because several providers had pledged to treat different traffic the same.

Deputy Attorney General Sarah E. Kurtz noted not all providers had signed these pledges. She also said these policies still allowed providers to favor some traffic and were completely voluntary.

But Kurtz had the luxury of mostly watching while Mendez questioned the industry lawyers. He noted a much publicized incident in which providers cut data speeds to fire crews fighting the 2019 Mendocino Complex Fire.

"These are not hypothetical concerns," he said.

Mendez ended by telling the parties he would not issue a detailed written opinion, even though the case is likely to be appealed. He said this was because the court had only four current full-time judges, with two empty slots, and "hasn't had a new judge in 30 years." The court's presiding judge, Kimberly J. Mueller, will testify to the U.S. House Judiciary Committee today on the district's judge shortage.

"Under different circumstances I would take this under submission and write a lengthy opinion," Mendez said. "Given the burdensome case load in this district, I have to issue a decision from the bench today rather than prepare a written order. ... I don't have the resources and I don't have the time."