It’s back in the news. I wrote about this four years ago.

Net neutrality.

Back then, a sentient government was considering rules to make it impossible for an internet provider to charge folks for access to the internet backbone, to slow down competing sources from equal access to those using the internet.

The government did render those regulations. On 12 March 2015, the FCC made the decision that the internet was a public utility. (Actually, the internet was termed a Title II Common Carrier.). As such, rules concerning access and fees could be regulated by the government. This meant that internet providers would have no legal standing to block or throttle traffic- or even to offer paid express lanes.

Except TheDonald’s administration removed those regulations on 14 December 2017. Which lets the internet providers throttle connections to competing services (as an example, I am not saying this had already happened- Comcast or ATT throttling Netflix) or an express lane (again- a hypothetical- offering a 50 Meg connection to Hulu for a fee). It was done simply- by declaring the internet providers were NOT Title II Common Carriers.

Given the way things are- and the fact that we, the American citizens, have a lot to lose when and if there is no net neutrality, it shouldn’t be surprised that 29 states have taken action to institute their own laws. (By the way, this is EXACTLY why some providers wanted federal regulation- so they wouldn’t have to comply with a hodge-podge of rules.)

Now, not all 29 states have completed their actions. Only 3 states have already passed legislation; 6 others have adopted executive orders. The rest are in various stages of approval (or rejection).

And, it’s less surprising that the current administration has decided to act against California for passing such a rule. California, to the GOP, is the definition of a Blue state. (You DO know that I have to look up every time to see who is Red and who is Blue, since I don’t quite think that way.)

While the suit is against California, don’t assume it won’t affect you. This case- and its disposition- will affect each and every one of us regarding our internet connections. (It won’t be decided until it gets to the Supreme Court, though- and god knows  if we will have 9 jurists or a bunch of political hacks.)

The California law goes beyond what the retracted FCC rule did. Sure, it blocks providers from throttling websites or from blocking us from certain domains. But, it also prevents carriers from requiring fees from websites to be seen (or put on the expressway), as well as exempting their preferred apps from counting towards our data limits.

AG Sessions is acting because he believes the federal government regulations have supremacy over state law. And, since Sessions believes the internet is “interstate commerce”, it is subject to federal oversight.

The California response is that the FCC has abrogated its own authority to regulate the internet by its December actions. The FCC actually stated that the Federal Trade Commission may have authority to regulate the internet, not their own agency. If the FCC lacks the authority to regulate the internet, it clearly lacks that same authority to preclude state regulation of the internet.

(Judicial processes hold that when the federal government lacks the authority to regulate, it lacks the standing to stop states from regulating said activity. The only exception may be the CAB [Civil Aeronautics Board] airline deregulation of 1978, which barred states from enacting replacement authorities. But, that was an act of Congress- not an independent executive agency, like the FCC.)

California may also claim they have a legal mandate to protect the health and safety of its citizens, and that is protected under the 10th Amendment. That does mean its existing laws are not sufficient to protect citizen welfare regarding net neutrality.

I’m betting on California.  Because we need such regulations!

 

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