Net Neutrality gets green light, but so far no enforcement in sight

Former FCC Chairman Ajit Pai sounded alarms about the California Internet Consumer Protection and Net Neutrality Act of 2018 even before it was passed. He labeled it as “a radical, anti-consumer” piece of legislation passed by “nanny-state California legislators.” He fretted that “California’s micromanagement poses a risk to the rest of the country” because “if individual states like California regulate the Internet, this will directly impact citizens in other states.”

Maybe Pai needn’t have worried. Almost four years later not much has happened to enforce net neutrality despite California’s law, which is widely viewed as the gold standard for protecting a fair and open internet. The Act bars a wide range of techniques to block, impair or degrade data speeds to a fixed endpoint or a mobile broadband station in California.

To be fair, the Net Neutrality Act was hampered by legal skirmishes. Literally on the day the Act was to take effect, former President Donald Trump’s Department of Justice and a coalition of broadband-industry lobby groups representing wired and mobile Internet providers (the American Cable Association, CTIA-The Wireless Association, NCTA-The Internet & Television Association, and US Telecom) sued to stop California from enforcing the law. American Cable Association v. Becerra, Case No. 2:18-cv-02684, (E.D. CA 2018). The lawsuit was based on a broad preemption provision in the FCC order revoking net neutrality rules that barred states from enacting their own regulations. Declaratory Ruling, Report and Order and Order, FCC 17-166, at ¶195 and fn. 730 (released Jan. 4, 2018).

The U.S. Court of Appeals for the District of Columbia eventually rejected the FCC’s preemption provision. Mozilla Corp. v. FCC et al., Case No. 18-1051 (Oct. 1, 2019). After President Joe Biden took office, the DOJ voluntarily dismissed its complaint. The industry group continued on, seeking a preliminary injunction to stop enforcement of the law. The district court denied the preliminary injunction motion and the U.S. Court of Appeals for the Ninth Circuit upheld that order in January. Case No. 21-15430 (E.D. CA 2021). In May, the industry group stipulated to a dismissal of its case.

Once the preliminary injunction was denied by the district court, the Net Neutrality Act could have been enforced immediately, but that didn’t happen. Instead, California chose to wait until the appeal of the preliminary injunction was decided. Interestingly, one of the Ninth Circuit judges on the three-judge panel voting to uphold the district court commented on the lack of progress.

Judge Clifford Wallace wrote a concurrence in which he noted that the lower court should have moved forward to decide the case on the merits without waiting for a decision on the appeal of the preliminary injunction denial. He wrote, “[w]e have also repeatedly admonished district courts not to delay trial preparation to await an interim ruling on a preliminary injunction.” He noted that almost a year went by between the date the appeal was filed (March 9, 2021) and the date of the Ninth Circuit’s decision (Jan. 28, 2022). “Since then, it appears that there has been little progress in the case. Given the purported urgency of the case’s resolution, the parties might ‘have been better served to pursue aggressively’ their claims in the district court, ‘rather than apparently awaiting the outcome of this appeal’ for nearly one year.”

The same could be said about the lack of forward movement to enforce the Net Neutrality Act. One reason there likely has been no enforcement action is that California consumers who believe they have been harmed by a net neutrality violation must wait for the California Attorney General to act. Senate Bill 822, which was passed as the Net Neutrality Act, initially included a private right of action that would have given consumers the right to seek the remedies available in Cal. Civ. Code 1780. Those remedies include actual damages of no less than $1,000, an order enjoining a prohibited practice, and punitive damages. Ca. Civ. Code Section 1780(a)(1-5). The private right of action was removed in the California Assembly. So, consumers are left to wait for the California Attorney General’s office to enforce the law.

The AG’s office didn’t act in January after the Ninth Circuit upheld the denial of the preliminary injunction. California Attorney General Rob Bonta issued a press release. “This battle isn’t over yet, but today’s victory should send a clear message: We won’t stop fighting to protect Californians’ access to a fair and open internet.”

Five months later, in May, the industry group stipulated to a dismissal of its lawsuit. Attorney General Bonta issued a press release. “Following multiple defeats in court, internet service providers abandoned this effort to block enforcement of California’s net neutrality law. With this victory, we’ve secured a free and open internet for California’s 40 million residents once and for all.”

Since then, there has been no guidance from the Attorney General regarding how consumers can report net neutrality violations for investigation, and apparently staff assignments have not yet been made to handle net neutrality issues. This may be the classic case of “Dog Catches Bumper, Now What?”