California’s net neutrality bill is vulnerable to legal attack, EFF says

State net neutrality laws that are too broad may be preempted by FCC's repeal.

Read the whole story

 

[Nowicki]

So the FCC can regulate Net Neutrality laws at the state level, but doing at the federal level is over reach?

simply put
This is bullshit

 

[ZhanMing057]

"States' Rights"

 

[THavoc]

Anything that can be done to get it right before the law is passed, I consider a positive development.

 

[DrCoras]

I'm still confused about how the FCC is not allowed to preempt state laws with regards to municipal broadband, but they are with regards to NN.

 

[TomXP411]

Is the FCC order actually up to read yet? I'm basing a lot of my comments based on what's been said *about* the order, not the order itself.

Mostly, I have a problem with the FCC abrogating responsibility, then saying "but no one else is allowed to be responsible, either."

Either the FCC is in charge of Net Neutrality or it's not. Even Pai said that it's a thing we should have, but that he doesn't think it's the FCC's place to govern it. So this whole "but states can't do it either," seems to be in direct contradiction with his public comments on the matter.

I actually want to see this go to court, because I want to see this whole sham exposed for what it is: a Corporate attack on American freedoms.

 

[Nowicki]

I'm still confused about how the FCC is not allowed to preempt state laws with regards to municipal broadband, but they are with regards to NN.

Because this administration is such a distraction in itself that we cant have a full conversation about it before the politicians move on. Doesnt mean it will succeed in the end, but its hard to complain about the smell of the swamp when its on fire all around us, and spreading

 

[TomXP411]

"States' Rights"

The Constitution was pretty clear that states should have power that's not specifically reserved for the Federal government. Instead, we seem to have more and more situations where the opposite is true, and every possible interpretation is used to deny states the right to govern within their own borders.

 

[TomXP411]

In the meantime, Falcon says that state lawmakers should recognize that they can't fully reinstate the repealed net neutrality rules at the local level. But states that want to enforce net neutrality "should invoke all valid authority to do so," he wrote.

It seems that by moving to strike Net Neutrality, the FCC has just created a much worse situation for the ISP's who fear an Open Internet. Now, ISPs will have to deal with 50 different sets of laws on the topic, rather than just one set of regulations. I can't see this as helpful to the ISP's at all, and it certainly destroys any benefits they were hoping to gain in terms of exploiting new revenue streams to build out their networks.

 

[slipleft]

Legal challenge sounds like a great idea so we can determine the constitutionality of this state preemption stuff.

 

[THavoc]

Legal challenge sounds like a great idea so we can determine the constitutionality of this state preemption stuff.

But we'd want to close off any possible routes that would allow it to be overturned.

 

[Coriolanus]

I gotta say, I'm going with NY and Montana on this one.

Yes, the Californian law is more broad and much stronger, but the Federal Government can enjoin the implementation of the law for years on (as noted) Federal Preemption principles. Even if California wins, it'll take at least half a decade of litigation (or more) and millions of taxpayer dollars.

What California is doing is positioning itself and its politicians for elections down the road. But it has no benefit to Californian consumers now.

What NY and Montana are doing are much limited, but it is a hell of a lot more effective. For one, it's a hell of a lot harder for someone to make Federal Preemption arguments against a law that regulates grant of state contracts to third party vendors. The States are generally allowed pretty wide latitude in conducting their own businesses with vendors.

Plus, the government of NY and Montana (actually especially NY) are probably the largest customers to a broadband contract within the state. The SUNY (State University of New York) system alone in New York is the equivalent of a city the size of Detroit, or Washington DC, Seattle or Boston. The CUNY system (on top of SUNY) is the equivalent of a city the size of Newark, NJ. The two of them together and we're talking Austin, TX or San Jose, CA size populations. And that's not including the massive sprawling bureaucracy of the New York State government at large, which, altogether, would probably be bigger than most of the major cities in the US.

That's a lot of market power at work. And no ISP is going to take lightly the prospect of losing revenue equivalent to connecting Austin, TX to enforce some sort of unbalanced network throttling policies.

NY and Montana are doing it right. California is just posturing.

 

[C.M. Allen]

And what about state-wide bans on the sales of internet services that don't support network neutrality? States can ban the sales of goods and services already (fireworks, anyone?), so it's not like the precedent isn't already in place. See how fast Comcast, AT&T, Charter, et al, backpedal when they realize they could be completely shut out of entire markets with the flick of a governor's pen. No Network Neutrality, no operations in that state. And if the big telecomms don't want to play ball, it's no longer a conflict with existing businesses to build out municipal broadband infrastructure. Either way, the states are holding all the cards (assuming, of course, that the people in charge of said states aren't just bought off...*cough* Senawhore Blackburn).

 

[RickyP784]

As de León's bill currently stands, I kinda hope it does get struck down so the EFF can go "told ya so." I'm not saying I hope NN fails; I want nothing more than to force ISPs to be regulated as utilities and subject to LLU, but when a group of tech policy experts gives you a measured and well-considered legal opinion, and you just go, "Meh, whatevs. We're gonna do it our way," well, you get what you deserve.

 

[Coriolanus]

Legal challenge sounds like a great idea so we can determine the constitutionality of this state preemption stuff.

The problem of this - if the courts decide in a way that's against your position, it's now not just an argument, it's a legal precedent.

Why take that risk?

 

[flatrock]

I wonder if California could argue that the ISPs could always create their paid prioritization system, but they would have to give all traffic that is internal to California the same priority. Unless companies wanting to take advantage of paid prioritization what to locate their servers outside the state, it would create a significant disincentive for companies to pay to have their traffic prioritized. If enough states follow suit it could make it uneconomical to implement and support.
It's a crappy end run around the FCC and Congress being unwilling to protect consumers, but it might be constitutionally sound.

 

[ImSpecial]

States rights!

 

[RickyP784]

Is the FCC order actually up to read yet?

Yes.

 

[THavoc]

I gotta say, I'm going with NY and Montana on this one.

Yes, the Californian law is more broad and much stronger, but the Federal Government can enjoin the implementation of the law for years on (as noted) Federal Preemption principles. Even if California wins, it'll take at least half a decade of litigation (or more) and millions of taxpayer dollars.

What California is doing is positioning itself and its politicians for elections down the road. But it has no benefit to Californian consumers now.

What NY and Montana are doing are much limited, but it is a hell of a lot more effective. For one, it's a hell of a lot harder for someone to make Federal Preemption arguments against a law that regulates grant of state contracts to third party vendors. The States are generally allowed pretty wide latitude in conducting their own businesses with vendors.

Plus, the government of NY and Montana (actually especially NY) are probably the largest customers to a broadband contract within the state. The SUNY (State University of New York) system alone in New York is the equivalent of a city the size of Detroit, or Washington DC, Seattle or Boston. The CUNY system (on top of SUNY) is the equivalent of a city the size of Newark, NJ. The two of them together and we're talking Austin, TX or San Jose, CA size populations. And that's not including the massive sprawling bureaucracy of the New York State government at large, which, altogether, would probably be bigger than most of the major cities in the US.

That's a lot of market power at work. And no ISP is going to take lightly the prospect of losing revenue equivalent to connecting Austin, TX to enforce some sort of unbalanced network throttling policies.

NY and Montana are doing it right. California is just posturing.

The problem is tho the NY and MT course is much much easier to change than the CA route.

 

[HelloDarknessMyOldFriend]

As de León's bill currently stands, I kinda hope it does get struck down so the EFF can go "told ya so." I'm not saying I hope NN fails; I want nothing more than to force ISPs to be regulated as utilities and subject to LLU, but when a group of tech policy experts gives you a measured and well-considered legal opinion, and you just go, "Meh, whatevs. We're gonna do it our way," well, you get what you deserve.

It's not like EFF has many years of legal (and relevant) expertise at the federal level or something. Why would a random state senator listen to them? /s

 

[slipleft]

Legal challenge sounds like a great idea so we can determine the constitutionality of this state preemption stuff.

The problem of this - if the courts decide in a way that's against your position, it's now not just an argument, it's a legal precedent.

Why take that risk?

Because NN will be achieved one way or another (the CA way or the NY/MT way). The CA way offers not only the desired outcome of NN, but also a principled route to achieving it by determining the constitutionality of the FCC's regulation. If the FCC's regulation stands, and CA is effectively preempted, then the NY/MT approach offers a suitable work-around.

In other words, I want more than NN. I also want the FCC's federal preemption of states' ability to regulate telecoms to have a fiery, public death.

Moreover, in my view, even the possibility that a telecom operator could simply forgo government contracts so that they can be allowed to offer discriminatory internet service is not acceptable.

Consider this - NY apparently has 51 ISPs. If any of these do not receive government contracts as part of normal business, then they would have free reign to provide discriminatory service at no cost under the governor's executive order. Not sure how likely this scenario is, but it shouldn't even be possible.

 

[wvmikep]

"States' Rights"

I'm all for states' rights. However, if there's an issue that is clearly interstate commerce, the Constitution is very clear.

 

[nehinks]

I can't say I'm surprised. At least half of this is politicians wanting to cash in on popular sentiment and be able to claim "we passed NN when Washington wouldn't!" If they actually cared about the issue, they'd craft a bill that wasn't purely a middle finger at the Federal government and could pass review.

Not particularly shocking given it's California. NY and Montana are actually dealing with the issue, not the perception of the issue. If more states want to take up this banner, I sincerely hope they go that route instead.

 

[THavoc]

I can't say I'm surprised. At least half of this is politicians wanting to cash in on popular sentiment and be able to claim "we passed NN when Washington wouldn't!" If they actually cared about the issue, they'd craft a bill that wasn't purely a middle finger at the Federal government and could pass review.

Not particularly shocking given it's California. NY and Montana are actually dealing with the issue, not the perception of the issue. If more states want to take up this banner, I sincerely hope they go that route instead.

I don't.

Laws > Executive Orders

 

[wvmikep]

And what about state-wide bans on the sales of internet services that don't support network neutrality? States can ban the sales of goods and services already (fireworks, anyone?), so it's not like the precedent isn't already in place. See how fast Comcast, AT&T, Charter, et al, backpedal when they realize they could be completely shut out of entire markets with the flick of a governor's pen. No Network Neutrality, no operations in that state. And if the big telecomms don't want to play ball, it's no longer a conflict with existing businesses to build out municipal broadband infrastructure. Either way, the states are holding all the cards (assuming, of course, that the people in charge of said states aren't just bought off...*cough* Senawhore Blackburn).

It depends. If that throttling is happening outside of California, say in Nebraska, what California is doing is a violation of the Interstate Commerce Clause. Another example: they can't require that a car company sell electric cars in any other state but their own.

 

[Ryanrule]

"States' Rights"

The Constitution was pretty clear that states should have power that's not specifically reserved for the Federal government. Instead, we seem to have more and more situations where the opposite is true, and every possible interpretation is used to deny states the right to govern within their own borders.

Facist repubs don’t care about the constitution.

 

[krimhorn]

So the FCC can regulate Net Neutrality laws at the state level, but doing at the federal level is over reach?

simply put
This is bullshit

You have it almost right. They can regulate net neutrality laws of the states and imposing net neutrality at all is overreach.

IOW: States Rights, except when it interferes with our pocketbooks or the pocketbooks of our donors.

 

[Coriolanus]

I gotta say, I'm going with NY and Montana on this one.

Yes, the Californian law is more broad and much stronger, but the Federal Government can enjoin the implementation of the law for years on (as noted) Federal Preemption principles. Even if California wins, it'll take at least half a decade of litigation (or more) and millions of taxpayer dollars.

What California is doing is positioning itself and its politicians for elections down the road. But it has no benefit to Californian consumers now.

What NY and Montana are doing are much limited, but it is a hell of a lot more effective. For one, it's a hell of a lot harder for someone to make Federal Preemption arguments against a law that regulates grant of state contracts to third party vendors. The States are generally allowed pretty wide latitude in conducting their own businesses with vendors.

Plus, the government of NY and Montana (actually especially NY) are probably the largest customers to a broadband contract within the state. The SUNY (State University of New York) system alone in New York is the equivalent of a city the size of Detroit, or Washington DC, Seattle or Boston. The CUNY system (on top of SUNY) is the equivalent of a city the size of Newark, NJ. The two of them together and we're talking Austin, TX or San Jose, CA size populations. And that's not including the massive sprawling bureaucracy of the New York State government at large, which, altogether, would probably be bigger than most of the major cities in the US.

That's a lot of market power at work. And no ISP is going to take lightly the prospect of losing revenue equivalent to connecting Austin, TX to enforce some sort of unbalanced network throttling policies.

NY and Montana are doing it right. California is just posturing.

The problem is tho the NY and MT course is much much easier to change than the CA route.

Okay, let me pose a question to you this way:

Which is preferable to consumers in the state:

A) An executive order which takes effect throughout the term of the sitting governor, which may change if a governor of an opposing party gets into office?

or

B) A law which is immediately subject to a lawsuit from the federal government, enjoined from taking effect pending the outcome of the lawsuit, and doesn't take effect for years in the meantime?

Seems to me, choice A at least give consumers some measure of protection now. Choice B will result in an injunction, and consumers will have no protection pending the lawsuit. And chances are, the state will lose the lawsuit.

 

[speedemon105]

I'm still confused about how the FCC is not allowed to preempt state laws with regards to municipal broadband, but they are with regards to NN.

Me too, i thought the general idea of why they couldn't preempt municipal broadband restrictions was basically "You can't say you don't have authority too regulate something and on the same breath tell the state's they can't regulate it either".
If they remove ISPs from title 2, they don't have authority to regulate net neutrality...so then how can they tell states they can't regulate it either?

 

[THavoc]

I gotta say, I'm going with NY and Montana on this one.

Yes, the Californian law is more broad and much stronger, but the Federal Government can enjoin the implementation of the law for years on (as noted) Federal Preemption principles. Even if California wins, it'll take at least half a decade of litigation (or more) and millions of taxpayer dollars.

What California is doing is positioning itself and its politicians for elections down the road. But it has no benefit to Californian consumers now.

What NY and Montana are doing are much limited, but it is a hell of a lot more effective. For one, it's a hell of a lot harder for someone to make Federal Preemption arguments against a law that regulates grant of state contracts to third party vendors. The States are generally allowed pretty wide latitude in conducting their own businesses with vendors.

Plus, the government of NY and Montana (actually especially NY) are probably the largest customers to a broadband contract within the state. The SUNY (State University of New York) system alone in New York is the equivalent of a city the size of Detroit, or Washington DC, Seattle or Boston. The CUNY system (on top of SUNY) is the equivalent of a city the size of Newark, NJ. The two of them together and we're talking Austin, TX or San Jose, CA size populations. And that's not including the massive sprawling bureaucracy of the New York State government at large, which, altogether, would probably be bigger than most of the major cities in the US.

That's a lot of market power at work. And no ISP is going to take lightly the prospect of losing revenue equivalent to connecting Austin, TX to enforce some sort of unbalanced network throttling policies.

NY and Montana are doing it right. California is just posturing.

The problem is tho the NY and MT course is much much easier to change than the CA route.

Okay, let me pose a question to you this way:

Which is preferable to consumers in the state:

A) An executive order which takes effect throughout the term of the sitting governor, which may change if a governor of an opposing party gets into office?

or

B) A law which is immediately subject to a lawsuit from the federal government, enjoined from taking effect pending the outcome of the lawsuit, and doesn't take effect for years in the meantime?

Seems to me, choice A at least give consumers some measure of protection now. Choice B will result in an injunction, and consumers will have no protection pending the lawsuit. And chances are, the state will lose the lawsuit.

There's no reason a state can't do both.

But a law is a long term solution, EOs are not.

As a consumer, I wouldn't want to worry about something like this every time there's an election for governor.

 

[slipleft]

I gotta say, I'm going with NY and Montana on this one.

Yes, the Californian law is more broad and much stronger, but the Federal Government can enjoin the implementation of the law for years on (as noted) Federal Preemption principles. Even if California wins, it'll take at least half a decade of litigation (or more) and millions of taxpayer dollars.

What California is doing is positioning itself and its politicians for elections down the road. But it has no benefit to Californian consumers now.

What NY and Montana are doing are much limited, but it is a hell of a lot more effective. For one, it's a hell of a lot harder for someone to make Federal Preemption arguments against a law that regulates grant of state contracts to third party vendors. The States are generally allowed pretty wide latitude in conducting their own businesses with vendors.

Plus, the government of NY and Montana (actually especially NY) are probably the largest customers to a broadband contract within the state. The SUNY (State University of New York) system alone in New York is the equivalent of a city the size of Detroit, or Washington DC, Seattle or Boston. The CUNY system (on top of SUNY) is the equivalent of a city the size of Newark, NJ. The two of them together and we're talking Austin, TX or San Jose, CA size populations. And that's not including the massive sprawling bureaucracy of the New York State government at large, which, altogether, would probably be bigger than most of the major cities in the US.

That's a lot of market power at work. And no ISP is going to take lightly the prospect of losing revenue equivalent to connecting Austin, TX to enforce some sort of unbalanced network throttling policies.

NY and Montana are doing it right. California is just posturing.

The problem is tho the NY and MT course is much much easier to change than the CA route.

Okay, let me pose a question to you this way:

Which is preferable to consumers in the state:

A) An executive order which takes effect throughout the term of the sitting governor, which may change if a governor of an opposing party gets into office?

or

B) A law which is immediately subject to a lawsuit from the federal government, enjoined from taking effect pending the outcome of the lawsuit, and doesn't take effect for years in the meantime?

Seems to me, choice A at least give consumers some measure of protection now. Choice B will result in an injunction, and consumers will have no protection pending the lawsuit. And chances are, the state will lose the lawsuit.

If (B) results in an injunction, then sign the executive order and continue fighting the good fight. It really isn't either / or.

 

[bb-15]

California is just posturing.

No. This bill should not be dismissed as having no customer merit.

As stated in the article;

"...states are permitted to enact laws associated with consumer protection, contracts, and business and advertising practices, all of which the current version of the bill now does," the spokesperson said. The bill "has been reviewed and commented on by experts at Stanford and Berkeley’s law schools," one of whom is a "former special counsel to the FCC and quite knowledgeable on preemption and other net neutrality issues."

 

[Dega7]

I agree with the EFF's suggested alternatives for another reason: Because these methods would also make it painfully obvious that the same companies who constantly cry about 'big government' are also greedily sucking on said government's teat.

 

[flatrock]

Legal challenge sounds like a great idea so we can determine the constitutionality of this state preemption stuff.

The problem of this - if the courts decide in a way that's against your position, it's now not just an argument, it's a legal precedent.

Why take that risk?

Because NN will be achieved one way or another (the CA way or the NY/MT way). The CA way offers not only the desired outcome of NN, but also a principled route to achieving it by determining the constitutionality of the FCC's regulation. If the FCC's regulation stands, and CA is effectively preempted, then the NY/MT approach offers a suitable work-around.

In other words, I want more than NN. I also want the FCC's federal preemption of states' ability to regulate telecoms to have a fiery, public death.

Moreover, in my view, even the possibility that a telecom operator could simply forgo government contracts so that they can be allowed to offer discriminatory internet service is not acceptable.

Consider this - NY apparently has 51 ISPs. If any of these do not receive government contracts as part of normal business, then they would have free reign to provide discriminatory service at no cost under the governor's executive order. Not sure how likely this scenario is, but it shouldn't even be possible.

If the federal government's ability to preempt state and local government's regulation of the internet dies a fiery death we could very well end up with a patchwork of inconsistent and even conflicting laws across the nation.

Different laws regarding how consumers must be protected. Different types of what is effectively censorship in different states. Perhaps different methods of resolving intellectual property rights issues. We need freedom and consumer protections, but we also need consistency. A net neutrality solution that only effects some states isn't a very viable option either. California doesn't really want net neutrality for just traffic that originates and ends in California. They hope that by regulating it in California they have make it so it isn't worthwhile for the companies to implement it at all. But the best solution is to go back to where the FCC is enforcing Net Neutrality and the state and local governments are prohibited from allowing paid prioritization.

 

[CraigJ ✅]

Why can't they just choose to adjust licensing fees for companies that do business in California?

Mr ISP, If you want preferred fees, don't have anti consumer policies, or your fees will be seven-figures. Or, charge all ISPs multi million dollar fees then provide tax credits for "performing business in pro consumer, progrowth fashion". I mean, if the state can give Tesla big tax breaks for setting up operations in Fremont, they can surely give tax breaks to ISPs who meet specific business practice conditions. This is all in addition to regulating access to utility poles and right-of-ways, and awarding state contracts.

"Trump supporters will make the preemption argument" State's rights? We don't need no stinking state's rights!

 

[CraigJ ✅]

Legal challenge sounds like a great idea so we can determine the constitutionality of this state preemption stuff.

The problem of this - if the courts decide in a way that's against your position, it's now not just an argument, it's a legal precedent.

Why take that risk?

Because NN will be achieved one way or another (the CA way or the NY/MT way). The CA way offers not only the desired outcome of NN, but also a principled route to achieving it by determining the constitutionality of the FCC's regulation. If the FCC's regulation stands, and CA is effectively preempted, then the NY/MT approach offers a suitable work-around.

In other words, I want more than NN. I also want the FCC's federal preemption of states' ability to regulate telecoms to have a fiery, public death.

Moreover, in my view, even the possibility that a telecom operator could simply forgo government contracts so that they can be allowed to offer discriminatory internet service is not acceptable.

Consider this - NY apparently has 51 ISPs. If any of these do not receive government contracts as part of normal business, then they would have free reign to provide discriminatory service at no cost under the governor's executive order. Not sure how likely this scenario is, but it shouldn't even be possible.

If the federal government's ability to preempt state and local government's regulation of the internet dies a fiery death we could very well end up with a patchwork of inconsistent and even conflicting laws across the nation.

Different laws regarding how consumers must be protected. Different types of what is effectively censorship in different states. Perhaps different methods of resolving intellectual property rights issues. We need freedom and consumer protections, but we also need consistency. A net neutrality solution that only effects some states isn't a very viable option either. California doesn't really want net neutrality for just traffic that originates and ends in California. They hope that by regulating it in California they have make it so it isn't worthwhile for the companies to implement it at all. But the best solution is to go back to where the FCC is enforcing Net Neutrality and the state and local governments are prohibited from allowing paid prioritization.

"If the federal government's ability to preempt state and local government's regulation of the internet dies a fiery death we could very well end up with a patchwork of inconsistent and even conflicting laws across the nation."

Thanks Verizon!

 

[Deadwing]

Remember, folks. Both parties are the same. Except that one of them seems to consistently do awful things that nobody wants.

 

[vassago]

It sounds like the CA Senator is going for a full court challenge of the state law preemption while the EFF wants them to play within the FCC's bullshit rules.

I think both are valid and should be pursued. Toppling the state preemption provision would be huge if they could pull it off.

 

[Da Truff]

This smells fishy. I'll bet there is a broadband lobbyist behind this. They probably wrote this actual legislation knowing that it is vulnerable. They can stall this from taking effect for years in court and then eventually have it overturned.

Chuck it out and start over with REAL legislation from the EFF advisory.

 

[sondjata]

"States' Rights"

The Constitution was pretty clear that states should have power that's not specifically reserved for the Federal government. Instead, we seem to have more and more situations where the opposite is true, and every possible interpretation is used to deny states the right to govern within their own borders.

Ahh the side effect of the Civil Rights movement when the Fed was empowered to overrule various state laws (the value of which I'm not even debating so leave *those* comments in your pocket) in the *interest* of the public.

A case of be careful what you ask for, as you might get it.