Challenge to California net neutrality law should be dismissed

On Feb. 23, a federal district court stymied a challenge by internet service providers to California’s law requiring that ISPs follow net neutrality rules, allowing the state to enforce these rules while the lawsuit drags on. Now the court should dismiss the lawsuit altogether.

California’s net neutrality rules prohibit ISPs from blocking or discriminating against internet-based services. Freedom of expression, freedom to innovate and competition all factor into the net neutrality debate. But ISPs argue that states have no place in this debate because the internet is an interstate communications network that transcends geographic boundaries. Any rules, they argue, must be set by federal — not state — authorities. And some net neutrality advocates might agree, sensing favorable winds now that the Biden administration oversees federal broadband regulation. We don’t. California should win for three reasons.

First, much of the internet is local. The internet includes many distinct local networks — systems of antennae, cables and wires — connecting people and devices. AT&T, Comcast and Spectrum, for example, operate local internet access networks — in the Bay Area, Los Angeles and elsewhere — that are connected to each other by separate networked systems. These networks rely upon local infrastructure, like underground conduits. And they serve local interests, such as communicating emergency notifications and shelter-in-place orders to local populations.

Because of this local focus, these networks were often deployed only with the permission of state and local authorities. Such authorities once could set rates for telephone and television services sent over these networks, and they issued rules to guard against unfair conduct and poor service quality. If local authorities can issue these rules, they can regulate the internet access service running over the same wires. Indeed, states have required backup power to protect against fire-related outages and funded high-speed internet access so children can attend remote schools while parents work from home, among other things. They can require net neutrality, too.

Second, states have a strong interest in protecting consumers from unfair ISP behavior. Without net neutrality, broadband carriers may abuse their power over your internet connection. AT&T, for example, might lower your data cap but exclude HBO (which AT&T owns) from those limits, so you’ll watch more

HBO and less Netflix. Moreover, fair competition enforced by net neutrality, the theory goes, leads to more and better internet access. The states have obvious motives to ensure fair competition and to get residents reliable internet access.

Finally, state and local regulation fills gaps in federal rules, nudging Congress and the FCC to develop better regulations nationwide. The Trump administration wiped federal net neutrality rules off the books, and it claimed its decision also preempted state efforts to replace those rules locally. But a federal court explained that the decision to rescind federal net neutrality rules did not undermine the states’ power to regulate ISPs by, as noted, ensuring the reliability or availability of internet access or even protecting net neutrality.

While federal regulators can address such matters, they sometimes — as during the Trump administration — choose not to. That may be due to a lack of political will or policy disagreement. State rules fill these gaps. And they spur federal action, offering federal regulators real data on regulatory successes and failures. Having the states go it alone may be less than ideal, but it is better than nothing. California’s net neutrality rules are a lawful, legitimate attempt to regulate ISPs at a time when most commerce, education, civic engagement and socialization has moved online. California’s experiment with net neutrality might help tell federal authorities, once and for all, whether these rules are worth it.