California recently passed what some argue to be the most robust net neutrality state law in the United States. That law has not yet gone into effect.
The very same day that California Governor Jerry Brown signed the net neutrality bill into law, the US Department of Justice was quick to filed a federal lawsuit, among other goals, to block implementation of the law. And last week, the Department of Justice and California Attorney General Xavier Becerra entered into an agreement to further postpone implementation of the California net neutrality law until the federal lawsuit is concluded.
So, what is at stake here?
The California net neutrality law is intended to replace Federal Communications Commission rules from the Obama administration that barred internet service providers from blocking or otherwise discriminating against legal content. Why does California have an interest in replacing these FCC rules? Because the FCC under the Trump Administration last year eliminated those rules. Furthermore, the FCC has banned states from passing their own net neutrality laws; however, it is not entirely apparent whether the FCC has such power.
The repealing of the Obama-era net neutrality rules currently is at the heart of major litigation involving the FCC, state attorneys general, tech interests, and consumer groups. If this litigation results in the reinstatement of the FCC net neutrality rules, then the California net neutrality law may not be necessary. And even if the litigation results in upholding the FCC’s abolishment of the net neutrality rules, the litigation nevertheless could conclude with the FCC not being able to ban states from going forward with their own net neutrality laws at the state level.
Thus, there is reason behind putting the California net neutrality law on hold pending the federal litigation.
Nevertheless, the end result of the litigation may not finally end matters with California. For example, as reported by Wired, US Attorney General Jeff Sessions additionally has asserted that California’s net neutrality law wrongly seeks to regulate interstate commerce — a province only suited for federal regulation. Moreover, Congressional efforts to restore the FCC net neutrality laws (especially depending on how the mid-term elections play out) could moot the California law.
Obviously, more time needs to pass to see where all of this ends up. Until we get there, it is worth pointing out that other states have passed their own laws or have issued executive orders supporting net neutrality.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.