Calif. Net Neutrality Judge Unpersuaded by ISPs 'Best Behavior'
A federal judge Tuesday questioned ISPs’ commitment to voluntarily follow net neutrality principles. ACA Connects, CTIA, NCTA and USTelecom at the teleconferenced hearing urged the U.S. District Court in Sacramento to support their preliminary injunction motion against California in case 2:18-cv-02684. Judge John Mendez repeatedly asked plaintiffs about what harm the 2018 California law (SB-822) would cause if allowed to take effect. The hearing was still going at 6 p.m. EST.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Mendez asked how a preliminary injunction would be in the public interest. Preventing an unconstitutional state law is always in the public interest, responded plaintiffs' attorney Matthew Brill. The internet is open and “will remain open” because ISPs have binding agreements to be transparent about network practices and not violate neutrality principles, said Brill.
Mendez asked what ISPs meant by “binding” because it “seems like a broad general statement without much teeth to it.” The judge interrupted Brill when the lawyer argued there have been no net neutrality problems since 2018. Mendez doesn’t find this argument, implying ISPs can be trusted, “persuasive at all,” he said. “Everyone has been on their best behavior since 2018.”
Industry commitments are totally voluntary, said Sarah Kurtz, representing the California Justice Department. “ISPs can change their mind at any time.” Mendez asked if the state attorney general could enforce the commitments. Kurtz said it can enforce a voluntary commitment that’s on record -- until an ISP took it back.
Mendez noted that some ISP executives told shareholders after the FCC 2015 net neutrality order that it wouldn’t change their business practices. The jurist asked why a court would find the California law would cause immediate and irreparable harm if SB-822 is effectively the same as the 2015 order. It appears likely the new FCC will reinstate the 2015 order, Mendez said. “If we’re just going to go back to 2015, where’s the harm?” Brill replied states shouldn't be allowed to regulate interstate broadband because it could lead to a “patchwork” of rules.
The judge warned at the start not to read too much into his questions.
President Joe Biden’s DOJ exited a separate challenge of SB-822 earlier this month (see 2102080073). Industry plaintiffs say it has no bearing on their claims here (see 2102160068). The same associations’ suit against Vermont’s net neutrality law has been on hold pending resolution of the injunction motion in California (see 2011230067).
California’s net neutrality law is blocked by field, express and conflict preemption principles, industry argued in its Aug. 5 motion (in Pacer). California disagreed in Sept. 16 opposition (in Pacer), arguing the state exercised traditional police powers, the FCC had no statutory authority to preempt states, and industry plaintiffs failed to show irreparable harm.