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California has just passed the most stringent law in terms of network neutrality at the state level and in a few hours the Justice Department has sued the state for preventing the law from happening. ;come into force. This is the beginning of a new chapter in the fight for Internet neutrality, with the federal government working closely with the telecommunications industry to end a wave of protections for Internet neutrality at the level of the Internet. States.
But legal experts have said The edge that efforts to shield states from the consumer protection equation are based on a weak legal basis and are only buying up the telecommunications sector rather than completely regressing the law.
The California SB822 was promulgated Sunday by California Governor Jerry Brown. The SB822 largely reflects the FCC's 2015 network neutrality rules that were rejected by preventing ISPs from blocking or restricting users' access to competing websites and services in their offerings.
But the new bill goes even further by controlling elements such as anti-competitive use cap ("zero rate") and the type of interconnection interference that has caused Netflix users to see continued slowdowns in 2014. California is also exploring its own state-level privacy laws as a result of the parallel industry attack on the rules of privacy. FCC in privacy protection last year.
FCC boss Ajit Pai quickly issued a statement calling the California bill illegal and anti-consumer, even though the bill was supported by consumer groups. Pai defended "state rights" when states enacted protectionist laws that hinder broadband competition, but these concerns evaporated when some states tried to protect consumers.
The Justice Department took legal action against California just hours after Brown 's signing of the bill, saying it was "a law". Illegal and extreme state aimed at thwarting federal policy "that could cause" irreparable harm "in the United States. The Department of Justice is seeking a preliminary injunction to prevent the California law from taking effect on January 1st.
"We are confident that we will succeed in this case because the facts are on our side," said Attorney General Jeff Sessions.
Critics of the administration's frontal attack on consumer protections say this is wishful thinking, and that all industry efforts are based on a fragile FCC legal system who has no chance of succeeding.
Anticipating state attacks in their attack on federal surveillance, Comcast and Verizon lobbyists last year asked the FCC to include wording in its repeal of the principle of network neutrality (prohibit) (read: prohibit) states to protect consumers.
But legal experts in the telecommunications sector claim that when the FCC dismantled its authority over broadband Internet service providers (by removing their classification of network operators from Title II under the Telecommunications Act), it has ironically killed any authority that could tell the states what to do. make.
"According to case law, an agency that does not have the power to regulate does not have the power to preempt states," said Barbara van Schewick, a law professor at Stanford, in a statement. The edge.
"When the FCC repealed the Open Internet Order of 2015, it stated that it did not have the power to regulate broadband Internet providers," van said. Schewick. "This means that the FCC can not prevent states from adopting Internet neutrality protections because its repeal order has taken away its power to enact such protections."
The courts have so far accepted. Charter Spectrum recently attempted to use this pre-emption language of the FCC to avoid a lawsuit in New York State about substandard service and speed. But a court ruled that the FCC pre-emption wording did not negate a state's right to protect consumers from fraud, deception and misleading advertising by Internet Service Providers (ISPs). "
Although the prosecution of the DOJ is attempting to claim that the 1996 Telecommunications Act states that Internet services must be "unfettered by the federal or state governments," consumer advocates claim that they distort what says the law and associate Internet regulation and regulation "Internet Service Providers" in particular.
"Congress created the Telecommunications Act, which is a common law of the federal courts, which is why each state has its own public services commission, franchise authority, seizure regulations Consumer Protection and State Provider Privacy Rules, "Ernesto Falcon, Legislative Counsel at the Electronic Frontier Foundation, stated The edge.
It can be argued that industry's efforts to block states are rotten, but the fight will only intensify as more states explore their own rules at the state level.
"We are waiting for the FCC and the GM to act to quell the rebellion on behalf of AT & T, Verizon and Comcast," said Falcon. "This lawsuit is not a surprise. The reality is that a vast majority of Americans want enforceable net neutrality, and Republicans and Democrats in the states respond to the demands of their constituents. "
Falcon argues that the DOJ's lawsuit is specifically designed to block state protections, as the telecommunications giants fix their eyes on an imminent lawsuit by 23 state attorneys general. Last year, states sued the FCC, claiming that it disregarded the public interest and violated agency standards in an attempt to please the industry at all costs. broadband.
Given the many procedural blunders of the FCC during the abrogation of network neutrality (going from a denial of service attack to an attack by negligence to the theft of identity and fraud during the public comment period), an industry victory is far from certain.
Even if the industry succeeds and the 2015 FCC rules are rejected, it is still unlikely that the courts will look favorably on the FCC's clumsy attempt to prevent states from adopting their own rules. rules, said former FCC lawyer Gigi Sohn. the FCC Network Neutrality Rules for 2015, The edge.
"At best, the ((the)) JJ could consider a short-term victory until the DC circuit decides the merits of his lawsuit," said Sohn. At the same time, "California's law on internet neutrality is simply a solution to the consumer protection problem that the FCC has voluntarily created," she added.
Nevertheless, the restoration of Internet neutrality in California is only a small step towards the protection of the nation as a whole. More than half of the US states are considering adopting new internet neutrality laws, privacy laws and decrees to fill the void and protect consumers from the many side effects of the lack of blatant competition in US broadband.
That said, consumers still face a sea of discordant state protections instead of comprehensive federal guidelines. As a result, some states may develop terrible laws or not enact them at all, leaving consumers not only no significant competition in broadband, but very little recourse when these regional monopolies and duopoly behaves badly (what They do often). Meanwhile, consumers in other states will benefit from comprehensive protection going beyond the original FCC rules that they are meant to replace.
This is a problem that comes from the industry – a direct result of the federal government's relentless, multi-year attack on consumer protection – and the fight is just beginning.
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