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California's Internet Neutrality Act is to come into effect on January 1, 2019, unless the US government convinces a federal court to suspend law enforcement.
As we reported yesterday, the Department of Justice sued the State of California shortly after Governor Jerry Brown passed the Net Neutrality Act. The Trump administration claims that California law is preempted by the Federal Communications Commission's repeal of net neutrality rules.
The government's complaint to the US District Court in the Eastern District of California is seeking a preliminary injunction that would prevent the implementation of the law pending the outcome of the case.
If the US District Court refuses to grant a preliminary injunction, the California rules will come into effect as scheduled on January 1. Like the old federal law, the new state law applies to home Internet service providers and mobile operators and prohibits blocking, blocking and blocking. paid prioritization.
In its motion for a preliminary injunction, the DOJ asserts that the application of the law would cause "irreparable harm" in the United States. According to the DOJ, it is not realistic that Internet service providers comply with different standards of internet neutrality, so that California law would effectively govern the entire country.
"Because its regulatory approach is in direct conflict with that of the FCC, the SB-822 inflicts irreparable harm to the United States as well as to the public interest in general," said MJ to the court. "As this Court has recently noted, & # 39;
In contrast, "California will not suffer any identifiable damage because of its inability to disrupt the status quo by applying an invalid law," said MJ.
California's law on Internet neutrality "should be enforced under California's unfair competition law, which allows courts to issue an injunction and impose civil penalties of up to 2 years. $ 500 per violation, "said the DOJ. Under this California law, the state attorney general, prosecutors, county councils, and prosecutors can sue companies. Individuals can sue if they are directly harmed by the actions of a company.
Department of Justice argument "irretrievably flawed"
It is not certain that the US government can pre-empt the California rules of network neutrality. Dozens of parties, including more than 20 Attorneys General (including those in California), have already filed suit against the FCC so that it cancels the repeal of network neutrality and the preemptive attempt of the state laws. The lawsuit is pending before the US District Circuit of Columbia District Court.
"The legal case for pre-emption is inevitably flawed: the FCC says it does not have the authority to regulate broadband Internet service," said lawyer Andrew Schwartzman, who represents the Benton Foundation in the United States. case against the FCC, in a statement in response to the complaint filed by the GM. . "The courts have always argued that when the federal government does not have the power to regulate, it can not prevent states from regulating."
The DOJ's lawsuit against California qualifies the FCC's broadband deregulation of the "positive policy of deregulation" and "deregulation approach" to the regulation of the Internet. "
The FCC's repeal of the rules of Internet neutrality "therefore does not constitute an absence of regulation to be fulfilled by the states," wrote the GM. Instead, "it is a national and uniform regulatory framework for which the Commission has carefully considered the limits and limits in the exercise of its legally delegated powers".
The DOJ continued:
Faced with this clear exercise of federal authority, California has attempted not only to reinstate the same rules as the repealed FCC, but also to impose new requirements that never existed at the federal level. And given that Internet service providers can not, realistically, comply with a set of standards in this area for California and another for the rest of the nation – especially when Internet communications cross multiple jurisdictions – the legislation of that state would have the effect of annulling federal law throughout the country. . Only an injunction of this Court can remedy this illegal result.
DOJ: Preemption should be presumed valid
Although the repeal of the FCC is currently the subject of a separate proceeding, the US District Court should not review its validity, said MJ. "[T]His court must presume that the 2018 order, including its pre-emption provision, is valid and only determine if SB-822 violates the 2018 order, "the DOJ said in its lawsuit against California.
Noting that California is one of the states to pursue the FCC in court to quash the repeal of net neutrality and pre-emption of state rules, the GM said that "California should not be allowed to discharge its burden by enacting advance legislation as long as its contestation of the DC circuit is ongoing and then argue that the actions go against an injunction ".
FCC President Ajit Pai praised the Ministry of Justice's complaint, saying, "The Internet is by nature an interstate information service, and as such, only the federal government can define a policy in this area ". Pai also stated that California law was "illegal" and "harmed consumers" by banning certain types of data cap exemptions that "allow consumers to stream video, music, etc., without no data limitation ".
According to the DOJ's complaint, California's rules go beyond the old federal law by banning certain types of tax-free status, the practice of exempting certain Internet content from data caps. California law would prevent Internet service providers from requiring payments from websites or online services that they tax-free, but it allows them to exempt entire categories of Internet content (such as the video and music) data caps.
States fight back
Scott Wiener (D-San Francisco), a California state senator and author of the Net Neutrality Bill, said he is confident that the US government will not be able to to block the neutrality of the internet in California.
Wiener said in a statement:
[US Attorney General Jeff] Sessions and his boss, Donald Trump, are not happy with the fact that the federal government is repealing net neutrality. In their world, no one is allowed to protect an open Internet. We have already followed this path: when Trump and Sessions sued California and claimed that we did not have the power to protect immigrants. California has fought Trump and Sessions as part of their immigration lawsuit – California won – and California will also fight this lawsuit. I have every confidence that [State] Attorney General Xavier Becerra will do an excellent job defending this law.
Washington State had also previously imposed Internet neutrality rules, the legislative sponsor of state law claiming that "the FCC has no pre-emptive power just because it says so."
Other states have adopted less direct approaches to regulate net neutrality. Oregon, for example, has not imposed network neutrality rules directly on Internet service providers. Instead, Oregon law prohibits state agencies from purchasing fixed or mobile Internet services from Internet service providers violating the principles of network neutrality.
The governors of six states (Vermont, Hawaii, Montana, New Jersey, New York and Rhode Island) have also issued executive orders to impose Internet neutrality rules on Internet service providers that provide Internet service. to government agencies of the state.
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