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Up from the ashes - California moves to restore tough net neutrality rules

Jerry Bowles Profile picture for user jbowles July 8, 2018
Only a week after passing the nation’s toughest privacy protection legislation, the California Senate agreed to restore state-level net neutrality protections that are tougher on ISPs than the FCC regulations killed in June.

net neutrality
It looks like the old hippy war cry “Power to the People” is making a comeback in California where strong and loud public demand has moved the state’s legislature in the last two weeks to adopt the strongest privacy protection and strictest net neutrality regulations in the nation.  Can the new protections survive a fight to the death with the big internet service providers?

In June, the California Senate passed SB 822, the country's toughest net neutrality law, which goes even further than the repealed Obama-era rules. The Electronic Frontier Foundation pronounced it the “gold standard for states looking to protect net neutrality”  So far, so good.

The ISP behemoths duly dispatched a small army of lobbyists to Sacramento to dampen enthusiasm for SB 822 and, surprise, surprise, a couple of weeks later, Assemblyman Miguel Santiago, D-Los Angeles, chairman of the state Assembly Communications and Conveyance Committee, introduced and rushed through a vote on a series of amendments designed to gut the bill, without even hearing testimony first.

The “gold standard” bill, headed by state Sens. Scott Wiener, D-San Francisco, and Kevin de Leon, D-Los Angeles, seemed doomed. Wiener threatened to withdraw his bill if he couldn’t restore the strong net neutrality protections he had intended when he wrote the bill.

It appeared that AT&T, Comcast, and two major industry trade groups spending nearly $1 million on lobbying in Sacramento in the first three months of the year alone (according to documents filed with the California Secretary of State) had paid off.

Public outrage was swift and intense.  Santiago’s office was flooded with thousands of calls and messages from voters who were unhappy with his stance.  A crowdfunding page began raising money to plaster billboards in his district depicting him as the man who killed net neutrality.  Fellow Democrats called it a betrayal to the Democratic party and threats were made against him and his wife. Nasty things appeared in print.  Said Evan Greer, Deputy Director of Fight for the Future.

It’s a shame that people have to expend our members’ energy and resources fighting a California Democrat like Miguel Santiago, who should be representing his constituents and supporting real net neutrality legislation rather than listening to lobbyists from AT&T, one of his top donors.  Unfortunately, Assemblyman Santiago is acting just like California’s own Ajit Pai. He says he supports net neutrality while actively working to dismantle it. He needs to fix the harm he caused, and this crowdfunded billboard will ensure that his constituents know what he is doing in their name.

Predictably, Santiago blinked.

Last Thursday, lawmakers including Santiago and the original bill’s backer Wiener held a press conference to announce that they’d come to an agreement after all, and would be largely restoring the bill to its original form.  According to state leaders, all of the deleted provisions (plus an element blocking ISPs from “double dipping” via erroneous “access charges”) have been restored to the bill in the wake of public pressure.  A legislative fact sheet reads:

Under this agreement, SB 822 will contain strong net neutrality protections and prohibit blocking websites, speeding up or slowing down websites or whole classes of applications such as video, and charging websites for access to an ISP’s subscribers or for fast lanes to those subscribers. ISPs will also be prohibited from circumventing these protections at the point where data enters their networks and from charging access fees to reach ISP customers. SB 822 will also ban ISPs from violating net neutrality by not counting the content and websites they own against subscribers’ data caps. This kind of abusive and anti-competitive “zero rating,” which leads to lower data caps for everyone, would be prohibited, while “zero-rating” plans that don’t harm consumers are not banned.

In what is certainly a front-runner for the Political Chutzpah of the Year Award, Santiago characterized his backtracking and ultimate compromise on the net neutrality issue as a way to resist the Trump’s administration policies:

At no time in history, do we need an open and free internet like we need it now, Now more than ever, we need to be able to tell these stories. We need to be able to empower people with information that is accurate—information that fuels our progressive movement across this country. Denying freedom of information is a direct attack on our democracy, and it’s essential we fight back.

Which would be a bit more persuasive had he not tried so hard to kill the bill.

My take

It’s far too early to pop the champagne corks.  SB 822 still needs approval from the legislature by the end of August, after which it heads to Gov. Jerry Brown's desk.  Even if it becomes law, we can expect a lengthy and expensive court fight that will eventually wind its way to the Supreme Court.

Ironically, whether SB 822 and other state-level net neutrality rules survive may ultimately come down to who Donald Trump appoints to replace Justice Kennedy on the Supreme Court.

California is one of 36 states trying to pass their own net neutrality laws since the Republican-led FCC voted to repeal its rules last December. Washington and Oregon passed their own protections earlier this year.  New York is working on a bill similar to California’s.

But, the battle lines are drawn for a long and intense battle to see who ultimately controls the internet.  In short, both the net neutrality and privacy issues are a long way from being resolved.  The old baseball adage “It ain’t over ‘til it’s over” certainly applies in this case.  Right now, nobody knows when it will be over.

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