California strikes deal with FCC to delay state net neutrality lawOctober 26, 2018
California has agreed to delay the enforcement of its “gold standard” net neutrality bill, according to a statement from the law’s sponsor Sen. Scott Wiener. The net neutrality rules were set to go into effect next year, but California officials have agreed to wait until the courts have resolved any pending litigation over the Federal Communications Commission’s roll back of the federal rules late last year.
FCC Chairman Ajit Pai cast the delay as a victory for the Commission. “This substantial concession reflects the strength of the case made by the United States earlier this month,” Pai said. “It also demonstrates, contrary to the claims of the law’s supporters, that there is no urgent problem that these regulations are needed to address.”
California Senator Scott Wiener, who had championed the bill, described the decision in different terms. “Of course, I very much want to see California’s net neutrality law go into effect immediately, in order to protect access to the internet,” Wiener said in a press release today. “Yet, I also understand and support the Attorney General’s rationale for allowing the DC Circuit appeal to be resolved before we move forward to defend our net neutrality law in court. After the DC Circuit appeal is resolved, the litigation relating to California’s net neutrality law will then move forward.”
“I look forward to successful litigation on this issue and to the restoration of strong net neutrality protections in our state,” Wiener said.
The FCC’s December rule, which rolled back the 2015 Open Internet Order last December, also included a preemption clause that forbid any states from passing their own net neutrality bills into law. However, many experts believe that clause to be unenforceable, which would allow for state-level neutrality measures like the one adopted by California. A court had previously ruled that the FCC’s preemption language had no authority over state’s rights to implement their own legislation.
“I am confident that the FCC’s authority to preempt such state laws will be upheld, along with our proven market-based framework for protecting Internet openness, investment, and innovation nationwide,” Pai said in his statement.
To some experts, this delay was expected. According to Harold Feld at Public Knowledge, the FCC’s net neutrality order can only be challenged in the D.C. circuit. The pending litigation on the California law, if challenged, would have to be brought to the state’s district court, violating the Hobbs Act. Therefore, waiting for a decision on the federal rule is both parties’s safest bet.
“Ultimately it doesn’t matter how much trash talk you have before the game. Let’s see what happens in the DC circuit,” Feld said.
The new net neutrality rules in California were set to go into effect on January 1st.
Updated 10/26/18 3:50 p.m.: Updated to include information regarding the Hobbs Act.