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After California passed what many see as the toughest protections for network neutrality this past weekend, the US Department of Justice announced it would sue the state. California Governor Jerry Brown signed the SB822 in California to cancel many of the net neutrality protections that the Federal Communications Commission (FCC) dismantled under Commissioner Ajit Pai earlier in 2018. In its lawsuit, the Department of Justice argued that the bill deregulation of the federal government vis-à-vis the Internet "and that, as the Internet itself can be categorized according to interstate commerce, the regulation of this area under the jurisdiction of the federal government.
"Under the Constitution, states do not regulate interstate commerce – the federal government does," Attorney General Jeff Sessions said in a statement denouncing the California bill. "Once again, the California legislature has enacted an extreme and illegal state law aimed at thwarting federal policy. The Department of Justice should not have to spend valuable time and resources to bring this action today, but we have a duty to defend the prerogatives of the federal government and protect our constitutional order. We will do it with vigor. We are convinced that we will prevail in this case because the facts are on our side. "
However, since the FCC has in the past taken conflicting positions on its role in regulating the Internet, this may be a more difficult argument to prove. Although the repeal of neutrality by the FCC specifically included language prohibiting states from protecting consumers, the agency also stated that it did not have the power to regulate suppliers Broadband when it repealed the 2015 Order on the open internet. "An agency that does not have the power to regulate does not have the power to pre-empt states, according to case law," said Barbara van Schewick, a law professor at Stanford University. "This means that the FCC can not prevent states from adopting Internet neutrality protections because the FCC revocation order has taken away all power." Repeal of FCC neutrality disputed before the courts by 22 attorneys general.
California has adopted the SB822 standard after the FCC dismantled protections against network neutrality, despite growing bipartisan support to keep the Internet free and open. Under California law, Internet service providers must treat all web traffic in the same manner and the state imposes restrictions on zero-rating practices and discriminatory practices that have strangled Netflix connections. Tax relief is a practice that can give an unfair advantage to large companies. DirecTV streams on the AT & T wireless network, for example, are not counted within a user's data limits due to a zero rate agreement between the satellite provider and its parent AT & T.
The telecommunications industry led by USTelecom had urged Brown to veto the bill, leaving the issue of regulation to the federal government.
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