Calif. Gov. Jerry Brown Signs Net Neutrality Law, Provoking Fight With Feds

By Sean Cavanagh — October 01, 2018 4 min read
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California Gov. Jerry Brown has signed a law designed to protect “net neutrality” and challenging a federal policy that critics fear would restrict schools’ ability to access online educational content.

The law signed by the Democratic governor pits the state squarely against the Republican majority on the Federal Communications Commission, which last year gutted an Obama-era policy meant to prevent internet service providers from throttling the flow of content over the web.

“We are restoring what we lost when Donald Trump’s FCC obliterated net neutrality,” California state Sen. Scott Wiener, a Democrat, said earlier this year in speaking about the legislation, which he sponsored.

“The internet is not something that’s optional. It’s so essential for our functioning society, and that will become more and more the case with technological advances.”

The Trump administration, through the U.S. Department of Justice, immediately announced that it would file a lawsuit to block the California law. Attorney General Jeff Sessions said the state legislation runs afoul of federal officials’ power to regulate interstate commerce.

An order approved last December by Republican FCC Chairman and Trump appointee Ajit Pai stripped away a swath of Obama-era regulations designed to protect net neutrality—a term used to broadly describe the free flow of information over the internet.

The FCC, under Obama, had favored regulating the internet in a fashion similar to utilities, under Title II of the Communications Act and section 706 of the Telecommunications Act. The Obama-era regulation, approved in 2015, forbade internet service providers from blocking or throttling content and from engaging in “paid prioritization” or assigning content to fast lanes based on monetary arrangements.

But last year’s order, championed by Pai, reversed that policy. It treated the internet content as an information service, in what supporters said was a lighter-touch approach to regulation.

Pai argued that the Obama-era policy amounted to heavy-handed government oversight that discouraged innovation by industry. He also said that fears that ISPs would stifle internet traffic—for the general public, or for schools—were exaggerated, and not supported by evidence.

Some K-12 school officials and librarians said they feared that stripping away the net neutrality protections would hurt the education community on at least two fronts.

Their first worry is that deep-pocketed content providers would be able to pay internet service providers for faster delivery of content to K-12 systems, leaving providers of educational resources to cope with slow, unreliable delivery of video and other web-based materials to classrooms.

Another concern is that potentially innovative K-21 entrepreneurs who rely on relatively low-cost delivery of their educational content to schools would lose out to bigger K-12 companies, who can afford to pay for streamlined access.

Other States Taking Up Fight

California’s law, SB 822, bars internet service providers from engaging in a variety of activity, including:

  • “Impairing or degrading” lawful internet traffic on the basis of “content, application, or service";
  • Engaging in paid prioritization;
  • “Unreasonably interfering with” or disadvantaging an internet user’s ability to elect or use service or lawful content;
  • Failing to disclose to the public accurate information about network management practices, performance, and other information that would be valuable to consumers; and
  • Engaging in “zero-rating"—or exempting some traffic from a customer’s data usage allowance—in exchange for money or other considerations.

In approving the controversial internet order last year, Trump appointees to the FCC seemed to anticipate challenges by individual states. The language of Pai’s order seeks to prevent individual states and local jurisdictions from setting their own internet policies that are inconsistent with the FCC’s policy.

In a statement issued over the weekend, Sessions made a similar case, saying the federal policy trumped state action.

“Under the Constitution, states do not regulate interstate commerce—the federal government does,” Sessions said. “Once again, the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy.”

Sessions was joined in issuing the statement by Pai, who argued that the language of the California law would end up hurting consumers and restricting options such as data-free plans, and the streaming of video and music.

Those services “have proven enormously popular in the marketplace, especially among lower-income Americans,” Pai said. “But notwithstanding the consumer benefits, this state law bans them.”

Lawmakers in 30 states have introduced over 72 pieces of legislation requiring internet service providers to ensure various net neutrality principles, according to the National Conference of State Legislatures.

Three states besides California—Oregon, Vermont, and Washington—have approved net neutrality legislation. And governors in six states—Hawaii, New Jersey, New York, Montana, Rhode Island, Vermont—have signed executive orders.

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A version of this news article first appeared in the Digital Education blog.