US ISPs Lose Court Bid to Skirt Network Neutrality Laws in California

A new court ruling says that California can enforce network neutrality laws. It is seen as a loss for major US ISPs who have been fighting this.

It’s yet another sign that network neutrality might soon be seeing signs of life again in the US. Network neutrality is the principle that ISPs cannot discriminate or favor different packets flowing throughout their networks. Instead, every packet responsible for carrying messages, video, etc. must be treated equally.

Such laws are necessary because ISPs in the US (and in Canada for that matter) have become conglomerate corporations. On top of that, they have borderline monopoly controls over many different regions. As such, they would be motivated to favor their own services and companies who are able to pay a premium to ensure their traffic gets through unhindered by artificial barriers set up by the ISPs. Additionally, in many areas, there are no alternatives to “vote with your wallet” to punish such behavior.

As such, network neutrality is a key pillar to the free and open Internet. Innovative ideas can flourish online and not run the risk of being hindered by ISPs turned gatekeepers of the Internet.

In late 2017, the whole world looked on in horror when the US gutted network neutrality at the behest of the big ISPs. The decision was made by Ajit Pai, someone appointed to the head of the FCC by then US president, Donald Trump. It was one of many decisions the Trump administration made that chipped away at the overall health of the country.

As a result of that decision, ISPs were free to charge premium prices for certain content through fast lanes. They were also free to shape any kind of traffic they pleased regardless of the implications of not just the open Internet, but also the very future of online innovation.

In response, several states saw the potential damage this could do to their overall economies. In response, they began trying to pass network neutrality laws on their own. The biggest state in all of this is California. This upset Republican’s because they didn’t like state rights being exercised if it had the audacity to defy their god, Donald Trump. It also upset the big US ISP corporations because they paid a lot of good lobbying money to have those laws repealed. In response, they sued to keep those laws off of state law books.

Despite promises made in exchange for repealing network neutrality laws, big ISPs hacked and slashed investments and jobs. By 2020, the open Internet in the US started experiencing signs of collapse when AT&T formally introduced fast lanes. Things began looking dire.

As we all know now, the US general election happened. Now elected president, Joe Biden, won the election. That election victory held up over the countless attempts by Trump to overturn the will of the American people. It even withstood a Trump instigated terrorist attack on the Capitol buildings.

In response, we posted a, so far, highly accurate set of predictions of what the Biden administration means for digital rights. Our prediction we had on restoring network neutrality started to come true within two days. Biden nominated Jessica Rosenworcel to head the Federal Communications Commission (FCC). This represented the first steps to getting those critical regulations back in place. Network neutrality isn’t yet restored today, but Rosenworcel is a chief advocate for such laws and is no doubt in the process of having those rules put back in place.

Now, we are learning that California might not have to wait for Rosenworcel to restore network neutrality to finally get that pillar back in place. We are now seeing a result of a lawsuit being filed by big ISPs to prevent the state from enforcing its network neutrality rules. A judge has ruled that California can, in fact, enforce their network neutrality rules within that state. From ArsTechnica:

Broadband-industry lobby groups’ motion for a preliminary injunction was denied by Judge John Mendez of US District Court for the Eastern District of California. Mendez did not issue a written order but announced his ruling at a hearing, and his denial of the ISPs’ motion was noted in the docket.

Mendez reportedly was not swayed by ISPs’ claims that a net neutrality law isn’t necessary because they haven’t been blocking or throttling Internet traffic.

“I have heard that argument and I don’t find it persuasive,” Mendez said, according to The Hollywood Reporter. “It’s going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [court case over the FCC’s repeal of net neutrality]. I don’t place weight on the argument that everything is fine and we don’t need to worry.”

Mendez, who was nominated by President Bush in 2008, also said, “This decision today is a legal decision and shouldn’t be viewed in the political lens. I’m not expressing anything on the soundness of the policy. That might better be resolved by Congress than by federal courts.”

The industry lobby groups’ lawsuit against California will continue, but the state can enforce its law while the case is still pending. California Attorney General Xavier Becerra praised the ruling, saying it means that “California can soon begin enforcement of SB 822,” the net neutrality law.

The lawsuit isn’t over and it can easily be appealed. So, while the case isn’t over, the ruling does mean that the rules can be enforced as the case proceeds. This represents a huge win for those who support the open Internet and innovation. ISPs have to treat packets equally within the state for the time being.

Now, it is certainly possible that, by the time the case works its way through the system, that the rules will be put back in place at the federal level. Still, as we saw during the Trump administration, just because a debate has concluded doesn’t mean that an arbitrary decision can be made and rules get reversed. The network neutrality debate is, in fact, over, and the conclusion is that network neutrality laws are necessary to help keep the Internet open for all. Still, nothing is stopping a future Republican administration from arbitrarily deciding to bend to the will of big US ISPs and repeal those rules at a later time.

Knowing this, it makes the California state level laws still important despite the positive signs at the federal level. If California has their own enforceable network neutrality laws in place, even if the rules get repealed at the federal level again, the state level laws will theoretically act as a sort of safety net. In other words, in order for network neutrality to be stripped for the people of California, it would have to be repealed both at the state and federal level. That is a much taller order from the political perspective. While not impossible, it would be much more difficult.

So, we’ll continue to monitor the situation in California and bring you any updates if we are able.

Drew Wilson on Twitter: @icecube85 and Facebook.

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