Net Neutrality Judge Looks to Congress -- as Do Plaintiffs
Congress, not courts, should decide net neutrality, said a federal judge Tuesday, ruling from the bench denying ISPs a preliminary injunction against California’s law (see our bulletin). “I don't find that the plaintiffs have demonstrated a likelihood of success on the merits at this stage of the litigation,” said Judge John Mendez on the motion by ACA Connects, CTIA, NCTA and USTelecom in case 2:18-cv-02684. This paves the way for the law to take effect, cheering fans of using Communications Act Title II to regulate broadband service, while industry plaintiffs agreed with the judge that Congress must step in.
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It’s not ideal for a court to look back to 1934 to rule on a case in 2021, said Mendez, concluding a teleconferenced hearing Tuesday at the U.S. District Court in Sacramento (see 2102230072). Congress wasn’t clear in Sections 151 and 152 of the Communications Act that it meant to preempt states, he said. Earlier in the hearing, Mendez repeatedly pushed plaintiffs to point to clear statutory language saying states could not act, asking why he shouldn’t be concerned that Congress didn’t put one sentence in Section 151 saying so. The FCC’s 2018 order said the federal agency can’t regulate, but it wasn’t an affirmative act of deregulation that would preempt states, he said.
Mendez saw no irreparable harm to ISPs. He noted California’s 2018 law (SB-822) was effectively the same as the 2015 order that ISP CEOs said wouldn’t change their business practices, and that it appeared likely the new FCC will reinstate the 2015 order. Mendez said he would have preferred to issue a written order, but COVID-19 and the district having too few judges for too much caseload made that impractical.
Plaintiffs ACA Connects, CTIA, NCTA and USTelecom agree with the court that “a piecemeal approach is untenable and that Congress should codify rules for an open Internet,” they said jointly. “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.” California Attorney General Xavier Becerra (D) called the decision an “important victory.” The ability of an ISP "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," said Becerra, who's President Joe Biden's nominee as health secretary.
The legal decision means California can enforce SB-822, said the law’s author, state Sen. Scott Wiener (D). “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.”
Letting the state law take effect is “big news” for open-internet policy, tweeted acting FCC Chairwoman Jessica Rosenworcel. The same ISP associations challenged Vermont's net neutrality law at the U.S. District Court for Vermont, where the case has been on hold pending resolution of the California injunction (see 2011230067).
The decision to uphold California’s law “only reinforces what we already know, strict enforcement at the state level is an effective consumer protection strategy,” emailed Maryland Del. Kirill Reznik (D) before a House Economic Matters Committee hearing Wednesday to consider his net neutrality bill (HB-1064) for the fourth time (see 2012080045). Asked whether the ruling could embolden states to take more action on net neutrality, Reznik replied, “I sure hope so." He added: "The evidence is clear. Relying on ISPs to voluntarily implement net neutrality while there are significant financial incentives to violate them is a recipe for disaster.” With Rosenworcel throwing her support behind the court’s decision, “right now is a good time for Maryland to act,” Reznik said.
The ruling “bodes well for other states” that required net neutrality, emailed Andrew Schwartzman, senior counselor for the Benton Institute for Broadband & Society who represented Benton as amicus curiae supporting the California law. "Mendez understood that arguments contending that California is precluded from enforcing its own Net Neutrality requirements could not surmount the heavy burden of showing clear Congressional intent to preclude states from enforcing their own Net Neutrality requirements,” he said. If ISPs “wish to avoid a 'patchwork' of inconsistent net neutrality rules in different states, they can ask the FCC to reassert its Title II authority over broadband, which will enable the agency to enact nationwide rules,” said Public Knowledge Legal Director John Bergmayer. PK, with Free Press, Mozilla and others, supported the law.
“The lobbyists that concocted the plan to federally deregulate themselves, despite massive public blowback, never once thought it was a bad idea politically,” tweeted Electronic Frontier Foundation Senior Legislative Counsel Ernesto Falcon, reacting to our report of the news. “Next they'll ask Congress to preempt states, and that worked out great for Big Tech right guys!?”