Would he or wouldn’t he? That was the question that kept net neutrality advocates in California–and nationally–awake at night since the state’s ambitious bill passed both chambers of the legislature on August 31 and went to Governor Jerry Brown’s desk for signing. Throughout months of intense debate and heavy lobbying, the outspoken four-term governor remained silent on the issue of California’s attempt to restore in state law the extensive protections from the Obama-era Federal Communications Commission (FCC)–which were rescinded under Trump’s FCC.
Brown’s decision in favor of the bill came almost down to the wire–just before the deadline to sign or veto bills at midnight on September 30. With his signature today, the law is due to take effect on January 1, 2019.
His silence and was a marked contrast to net-neutrality debates in other states. On the day of the FCC’s repeal vote (December 14, 2017), Washington State Governor Jay Inslee appeared on TV with state legislators, the attorney general, business, and nonprofit leaders announcing his intent to take any measure to restore net neutrality protections. Washington’s bill passed on February 28 and was signed by Inslee five days later.
Brown watchers weren’t entirely surprised, though, noting his penchant to study legislation extensively before making a decision. “He’ll suddenly call five people up to get their opinion on something,” said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon at a San Francisco rally in favor of the bill on September 19 (at which top House of Representatives Democrat Nancy Pelosi stumped for the state effort).
The bill’s passage will certainly be opposed by the FCC, which proclaimed its ability to preempt state efforts when it repealed the old regulations. “California’s micro-management poses a risk to the rest of the country,” said Chairman Ajit Pai earlier this month. State advocates, however, say that Pai gave up that right with the federal net-neutrality repeal, which rejected the FCC’s authority to regulate internet service providers. “If an agency wants to pre-empt states from regulating an industry, it has to have authority to regulate that industry,” says Ryan Singel, a fellow at Stanford Law School’s Center for Internet and Society.
Telecom and cable companies will certainly sue as well. (AT&T and Comcast were particularly active in lobbying against the California bill.)
California’s law will go beyond other state measures, which typically ban blocking and throttling a customer’s access to websites, apps, services, or classes of service, as well as banning the speeding up of sites, apps, and services whose owners pay for better-than-typical service (aka fast lanes).
In addition, the California law will ban ISPs from:
- Throttling content providers’ access into the ISP network and/or charging providers for access (aka circumvention of net neutrality at the point of interconnection).
- Providing access free of data caps for select sites or apps. California’s law allows so-called “zero-rating” for entire classes of content–for example, as T-Mobile does for video with its Binge-On program. But it prohibits zero-rating for specific services, as AT&T does for DirectTV, which it happens to own.
It looks like the next step for California will be the courts. Shortly after Brown signed the law, the Federal Department of Justice announced its intention to file a lawsuit blocking the measure. “I’m pleased the Department of Justice has filed this suit,” said FCC Chairman Ajit Pai in a statement. “The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area.”
This story has been updated with information about the federal lawsuit.