You might recall that former FCC chair Ajit Pai reversed the 2015 Open Internet Order by removing net neutrality in 2017. The FCC’s main argument was that the federal government doesn’t have sufficient authority to regulate net neutrality. That set off a series of events that eventually led to the state of California passing its own net neutrality law in 2018.
Ever since the California law came into effect, ISP lobby groups have been trying to repeal the decision. Despite all their attempts, California has managed to prevent its internet freedom from being eroded by the FCC and broadband companies alike.
ISP lobbyists aren’t through with California yet, though, and recently petitioned for a rehearing of January 2022’s appeal. The petition motioned for a rehearing that includes all of the appellate court’s judges (known as an “en banc” hearing).
What the California Net Neutrality Law is All About
During the Obama administration, the FCC implemented the 2015 Open Internet Order that impacted the way ISPs handle user data. Under net neutrality, ISPs couldn’t throttle or block lawful user browsing. They also couldn’t charge online services extra to prioritize their services (or not cap their data).
The FCC reversed the law just 2 years later in 2017 under the Trump Administration. That spurred California to implement its own state-level law since the FCC’s repeal only applied to the federal legislature. California’s Net Neutrality Act of 2018 focuses on the same internet traffic rules as the 2015 federal law.
California’s Net Neutrality Law Came Into Effect in 2021
It took 3 years for California to start enforcing its internet freedom law because industry groups kept delaying the proceedings. California agreed to delay enforcement of its net neutrality law until after the litigation is fully resolved.
The FCC and its proponents managed to enforce the delay with a preliminary injunction. During the injunction, the commission declared that all state net neutrality rules are preempted as a basis for the temporary delay.
Court judges later ruled that the FCC cannot preempt the California law and also can’t preempt all state net neutrality laws across the board. The court did relent that the FCC can preempt state laws on a case-by-case basis if they present valid inquiries. Before the latest appeals were filed, California was finally able to push its new act into effect.
The latest appeals aimed to delay the law again, but judges ruled that California’s law can remain in effect while litigation is ongoing.
ISP Lobbyists Denied Again
The first attempt to repeal California’s net neutrality by lobbyists was in the form of a preliminary injunction that the US District Court for the Eastern District of California denied in 2021. During that case, the FCC also tried to preempt California’s net neutrality law but was denied. Judges ruled that the FCC didn’t show legal authority to issue its Preemption Directive.
Industry groups then approached the US Court of Appeals for the Ninth Circuit to appeal the ruling. A three-judge panel rejected the petition 3-0 in January 2022.
No judge on the US’s largest court of appeals, which consists of 29 seats, asked for a vote on the rehearing petition. “It is notable that not a single judge on the nation’s largest court of appeals even asked for a vote on the industry’s rehearing petition,” said Andrew Jay Schwartzman, senior counselor for the Benton Institute for Broadband & Society.
Interestingly, the appeals court judges used the FCC’s own wording against it to deny the appeal. When the FCC dismantled net neutrality in 2017, it reclassified broadband internet access service as a telecommunications service. The judges ruled that the FCC “no longer has the authority to regulate in the same manner it had before.”
Industry groups are undeterred by this latest ruling and are likely to take the case to the U.S. Supreme Court.
ISPs Selling the Scarcity Lie
Industry groups keep lobbying that handing more control over to the FFC will result in more internet freedom. Opponents of net neutrality’s biggest argument for why they should have more control over internet access is because it’s a “scarce resource”. Internet service providers also push a long list of reasons why net neutrality is bad. Chief among them are:
- Net neutrality will stifle innovation and kill investment because of government interference.
- Services like Netflix are taking up too much bandwidth, leaving less available for other services and slowing people’s internet.
- Internet highways have a limited amount of bandwidth capacity and people need to pay more for the privilege to access more of it.
- Paid prioritization of internet traffic isn’t a big deal.
Experts have refuted these claims by presenting what net neutrality achieves:
- Net neutrality encourages fair competition and is worded in a way that prevents unlawful outside interference.
- ISPs can and should expand their businesses to accommodate more clients instead of trying to divide an existing structure between an ever-growing pool of users.
- ISPs can improve their infrastructure to grow with the increased demand, but refuse to because it would cost money.
- Paid prioritization gives those willing to pay more the opportunity to prioritize web traffic to their own websites. That stifles smaller competition, free speech, and dictates what people see online.
Unless you’re fine with companies deciding which websites you get to visit, it’s important to safeguard your internet traffic. Think about the websites you visit every day — your ISP tracks everything you do online. If you live in the US, right now they can influence what you can or cannot access. Only a few states have enacted net neutrality laws so far, and it’s an uphill battle all the way.
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