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Net-neutrality is the most important First Amendment issue of our time. It is the principle that all information, moving throughout the internet, should be unfiltered, unimpeded, and equally accessible to consumers. Broadband providers are specifically prohibited from blocking or degrading content. This includes sites and services that compete against their own services.
California enacted a law in 2017, that reinforced this principle after Federal Communications Commission (FCC) Commissioner Ajit Pai, a former in-house Verizon attorney, rolled back federal net-neutrality regulations. The Trump Justice Department immediately sued California to overturn its law. Broadband providers, through their trade groups, followed with a request for a preliminary injunction to stop the California law while the lawsuit wound its way through the courts.
On Feb. 23rd in 2021, Judge John Mendez of the U.S. District Court for the Eastern District of California denied the motion for a preliminary injunction. The group of internet service providers had also brought suit in 2018 to stop the state law from going into effect. The judge’s ruling cleared the way for California to enforce its net neutrality law, thereby ensuring equal access to internet content.
The trade groups suing the state said in a joint statement that they were reviewing the court decision and deliberating next steps. But they argued against state laws that create a patchwork of regulations for broadband providers.” They said “a state-by-state approach to internet regulation will confuse consumers and deter innovation, just as the importance of broadband for all has never been more apparent.”
The enactment of the California law is a move that is sure to be followed by other states in the absence of unambiguous federal regulations that will insure the free flow of information without a dollar skew. Washington, Vermont and Oregon are among a handful of states that enacted similar laws after the federal rollback of the rules.
California’s attorney general, Xavier Becerra, said in a statement: “We applaud the court for affirming that California has the power to protect access to the internet.” He went on to say: “The ability of an internet service provider to block, slow down or speed up content based on a user’s ability to pay for service degrades the very idea of a competitive marketplace and the open transfer of information at the core of our increasingly digital and connected world.”
The Biden administration has made statements supporting the reinstatement of federal net neutrality rules. One month into the new administration, the Justice Department dropped its lawsuit against the California’s law. The telecommunications industry’s request for a preliminary injunction was the last hurdle before that law could go into effect.
The California state senator who wrote the legislation, called the decision a victory. “The internet is at the heart of modern life. We all should be able to decide for ourselves where we go on the internet and how we access information. We cannot allow big corporations to make those decisions for us,” said Senator Scott Wiener.
Acting F.C.C. chairwoman, Jessica Rosenworcel, had fiercely opposed the agency’s decision in 2017 to scrap net neutrality regulations. Although she has not announced plans to reinstate federal rules, she is focused upon a mandate by Congress to bridge the digital divide for broadband access to low-income Americans. Shortly after the February 23rd court decision, the Acting Chairwoman tweeted: “Tonight a court in California decided that the state law can go into effect. This is big news for #openinternet policy.”
It bears repeating that states and municipalities have additional options to combat the industry’s assault on the First Amendment. The incumbent telecommunications companies have long lines that the upstarts do not. That mature infrastructure gives AT&T, together with the baby Bells, an unfair advantage if the long lines, stretched along railroad rights-of-way, are not regulated in accordance with common carrier statutes, as they were when what became the Bell System first gained access.
The extent to which municipalities also make public utility easements available to Internet Service Providers is clearly relevant in the context of Net-Neutrality. The Internet was created and funded to serve the public interest. First for defense, then for research, and eventually opening it up for commerce along with personal use. The Internet is a critical part of our nation’s communications infrastructure. The short-sighted gamesmanship of self-serving ISPs and politicians can have an adverse consequence related to the three flows of commerce and our country’s overall competitiveness.
One would hope that the courts will ultimately recognize the critical importance of net-neutrality but, if they don’t, any filtering, blocking, or impeding of content should be swiftly met with the state and local governments giving a more service motivated class of competitors superior access to the public utility easements and rights-of way.