California’s ‘Net Neutrality’ Bill is About National Politics, Not Policy

Steven Greenhut
Western Region Director of the R Street Institute

California legislators make a good point about “net neutrality” – the concept that the Internet should remain open and that Internet providers shouldn’t use access to their services to favor particular worldviews, products or websites. But, as is often the case at the state Capitol, state lawmakers are using their power to make a national political statement rather than to substantively advance principles virtually everyone supports.

The big news last week was the announcement of a “landmark” compromise deal on what its backers call “the strongest net-neutrality protections in the nation.” After intense lobbying from major Internet Service Providers, two Senate bills had previously been gutted in the Assembly Communications and Conveyance Committee. Some of the key consumer protections had been removed, which led the author of one of the bills, Sen. Scott Wiener, D-San Francisco, to try to withdraw what he and others viewed as toothless legislation.

Thursday’s deal, announced at a press conference with lawmakers from both houses, would essentially revive the measure as originally designed. “The ban on blocking, throttling, and paid prioritization remains,” explained the Electronic Freedom Foundation’s Katharine Trendacosta. That describes the way that some Internet providers use their pricing structure or network management to favor and disfavor certain websites. The newly revised measure also includes a ban on the kinds of so-called zero rating “that lead consumers to services that ISPs want them to use,” as Trendacosta added, as well as a ban on “access fees” that also are used to reduce consumer choice.

News reports suggest the deal was reached after Assemblyman Miguel Santiago, D-Los Angeles, chairman of the committee that eviscerated the bill, was inundated by calls and emails from activists and was targeted in billboards in his district funded by a crowdsourcing campaign. Backers of the tough new legislation have been celebrating their victory, but even if it eventually is signed into law by Gov. Jerry Brown, the effort is much ado about very little.

That’s because the legislation has a ballpark-zero chance of surviving scrutiny in the federal courts given Supreme Court precedent dealing with the Constitution’s supremacy and commerce clauses. The former ensures that federal law (in most cases) is the supreme law of the land. The latter forbids states from passing laws that unduly hamper commerce between states. California is free to pass some Internet-related access laws, but not one that is this far reaching.

Basically, the Federal Communications Commission has the supreme power on Internet rules. And Congress – not the California Legislature – is the ultimate authority on interstate issues, especially when it comes to something as self-obviously national (actually, international) in scope as the Internet. If all 50 states have their own pricing limits for Internet Service Providers and websites, then it would impose an unreasonable burden on, say, a video service company that wants to do a rollout in Kansas, but doesn’t conform to Missouri or California law.

The bill’s backers made their goals clear during that press conference. “There’s a lot of blue states in the country,” Santiago said. “We expect them to stand up and join us in this fight and pass measures that are equally as strong.” CNBC reported that Santiago “portrayed net neutrality as crucial to the future of the progressive movement and called on other liberal states to follow suit.” Even U.S. House minority leader Nancy Pelosi, D-San Francisco, weighed in on this parochial skirmish. Clearly, it’s more about energizing a blue wave in November than fixing any particular problems with Internet service rules in California. There are specific actions state lawmakers could take that might improve Internet access, if that were the primary goal.

California’s Legislature has become Ground Zero for the Trump resistance, as evidence by the 29 lawsuits the state has filed or joined against the national administration. So it’s only natural that California officials would try to energize their voting base after the Trump administration rolled back Obama-era net-neutrality rules. As a point of fact, the administration did not actually kill net neutrality, despite the overwrought criticisms, but don’t expect a nuanced conversation about this complex topic given that it’s all about politics rather than policy.

Steven Greenhut is Western region director for the R Street Institute. Write to him at [email protected].

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