Biden Could Shed California Net Neutrality Suit
Expect President-elect Joe Biden’s DOJ to quickly withdraw from a lawsuit at U.S. District Court for Eastern California challenging that state’s net neutrality law (case 2:18-cv-02660), experts said in interviews this week. It probably wouldn’t stop USTelecom, CTIA, NCTA and ACA Connects from continuing industry’s challenge (case 2:18-cv-02684), they said. Open-internet bills blossomed in many states after Chairman Ajit Pai’s FCC reversed the previous commission’s Communications Act Title II order.
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Oral argument in the California case is Jan. 26, six days after Biden’s inauguration. The new DOJ will “drop out right away,” predicted Georgetown Law Institute for Technology Law & Policy's Gigi Sohn, who advised former FCC Chairman Tom Wheeler on net neutrality during the Obama administration. While “the show will go on” with the ISP associations’ suit, it will be harder for industry to make a federal preemption case if DOJ isn’t making that argument, she said. Industry litigants didn’t comment Wednesday.
Because Biden supports net neutrality, Santa Clara University law professor Catherine Sandoval also expects DOJ to drop the suit following the inauguration. ISP associations “might continue their suit but may face a shift in the DOJ's posture,” Sandoval emailed, predicting the department’s new leaders will support California and other state net neutrality laws “adopted pursuant to the police power of the state to keep people safe and protect the welfare of the people of the state.”
While Biden’s “support for net neutrality has been quite tepid compared to his Democratic counterparts,” his DOJ “will almost certainly not go forward with” the lawsuit by President Donald Trump’s department, emailed University of Pennsylvania communications school doctoral candidate David Berman. That wouldn’t directly affect the industry challenge, but ISPs “should read the tea leaves,” said the co-author of After Net Neutrality: A New Deal for the Digital Age. “The Democrats are poised to regain control of the FCC and start the process of re-implementing net neutrality at the federal level.”
Dropping out of the California case is “an easy way for the incoming administration to shore up support” with the Democratic Party’s left wing, emailed Boston College law professor Daniel Lyons, a Free State Foundation academic adviser. He argues that California is preempted and disagreed that DOJ's withdrawing would have much impact on ISPs’ case. “Both cases presented similar legal questions, and frankly the ISP briefing was better than the DOJ's submissions,” he said. “It could matter if the federal government goes a step further and intervenes in support of California, but I think that's unlikely.” With Biden’s FCC likely to draft its own rules, it may “want to keep its options open on the issue of preemption.”
“One can favor net neutrality regulation" and federal preemption, emailed James Speta, Northwestern University law school interim dean. The Biden DOJ and FCC Democratic majority may want to defend preemption because fragmented state regulation isn’t good policy, he said. “I don’t know whether that means continuing each particular suit, but I think the position will remain.”