DOJ and ISPs sue Calif. despite court vacating FCC’s bid to preempt state laws.
JON BRODKIN – 8/6/2020, 12:27 PM
The Trump administration and broadband industry are resuming their fight against California’s net neutrality law, with the US Department of Justice and ISP lobby groups filing new complaints against the state yesterday.
The case is nearly two years old but was put on hold because California in October 2018 agreed to suspend enforcement of its law until after litigation over the Federal Communications Commission’s repeal of US net neutrality rules and the FCC’s attempt to preempt state net neutrality laws. That lawsuit was decided in October 2019 when the US Court of Appeals for the District of Columbia Circuit upheld the FCC repeal of its own rules but overturned the FCC’s attempt to impose a blanket, nationwide preemption of any state net neutrality law.
“At bottom, the Commission lacked the legal authority to categorically abolish all 50 States’ statutorily conferred authority to regulate intrastate communications,” judges in that case wrote. But that doesn’t prevent the Trump administration and ISPs from trying to block state laws on a case-by-case basis.
The appeals window in the FCC case closed last month, allowing the California case to move forward in US District Court for the Eastern District of California. Now that the Trump administration and broadband industry have filed amended complaints, California has until September 16 to file briefs supporting its net neutrality law.
California’s net neutrality law prohibits Internet service providers from blocking or throttling lawful traffic and from requiring fees from websites or online services to deliver or prioritize their traffic to consumers. The state law also bans paid data cap exemptions (so-called “zero-rating”) and says that ISPs may not attempt to evade net neutrality protections by slowing down traffic at network interconnection points.
DOJ: States can’t regulate interstate traffic
Despite the FCC’s preemption order being overturned in court, the DOJ’s amended complaint yesterday argued that California’s net neutrality law “is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.”
“California, however, seeks to second-guess the Federal Government’s regulatory approach by enacting SB-822 [the state net neutrality law],” the DOJ said. The state law “also violates the division of regulatory authority between states and the Federal Government” in which the FCC has “exclusive responsibility” for regulating interstate communications “while leaving states with responsibility for intrastate communications,” the DOJ said. The California law violates that division because “Internet communications are inherently interstate,” the DOJ said.
The DOJ also asked for a preliminary injunction that would prevent enforcement of the California law while the case is pending.
The broadband industry’s amended complaint was filed by the major lobby groups representing cable, fiber, DSL, and mobile Internet providers. “This case presents a classic example of unconstitutional state regulation… This statute was purposefully intended to countermand and undermine federal law by imposing on broadband—an interstate communications service—the very same regulations that the Federal Communications Commission expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations),” the ISP lobby groups wrote.
Though the FCC’s nationwide preemption was already thrown out by the DC Circuit appeals court, ISPs said that “the court did so only because it found the FCC lacked authority to expressly preempt all state regulation of intrastate broadband” and that “the court recognized that some state laws could conflict with, and be preempted by” the FCC preemption order. Additionally, the court decision “did not address whether the Communications Act itself preempted state regulation,” ISPs wrote.
The DOJ argued that “importantly, the DC Circuit did not decide ‘whether the remaining portions of the [FCC repeal] Order have preemptive effect under principles of conflict preemption or any other implied-preemption doctrine,’ noting that a conflict analysis depended on having ‘the facts of any alleged conflict before us.’ The Court left that issue open for another case where—like here—the Commission makes… provision-specific arguments.”
FCC abandoned its Title II authority
California will likely point to other portions of the DC Circuit order, which found that the FCC’s power to preempt is limited because the commission abandoned its Title II regulatory authority over broadband. “[I]n any area where the Commission lacks the authority to regulate, it equally lacks the power to preempt state law,” judges wrote in that case. The FCC’s “affirmative” sources of regulatory authority come from Title II, III, and VI of the Communications Act, judges wrote. But Pai’s FCC chose to apply Title I to broadband, which contains no such authority.
A spokesperson for California Attorney General Xavier Becerra told Ars, “We are reviewing the complaints and look forward to defending California’s state net neutrality protections.”
FCC Commissioner Jessica Rosenworcel, a Democrat who voted to impose net neutrality rules during the Obama administration and later opposed Chairman Ajit Pai’s repeal, called the DOJ’s lawsuit “shameful.”
“Millions wrote the FCC to say they supported net neutrality,” Rosenworcel wrote on Twitter yesterday. “But the FCC didn’t listen. It rolled back open Internet policies, over my objection. So states set out to right what the FCC got wrong, in their own laws. Today DOJ went to court to stop California’s effort. Shameful.”