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This is why California should not go it alone on net neutrality

What is net neutrality?

The F.C.C. repealed rules that require internet providers to give consumers equal access to all content online. Here’s how it works.
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The F.C.C. repealed rules that require internet providers to give consumers equal access to all content online. Here’s how it works.

Yogi Berra wasn’t talking about net neutrality when he complained about “déjà vu all over again,” but he might as well have been. This issue has been bouncing back and forth between the Federal Communications Commission, the courts, Congress and now states, just as it did for decades.

And the latest development – California’s sweeping internet regulation law recently signed by Gov. Jerry Brown – doesn’t seem any more likely to solve the problem than all the swings and misses already.

California’s new law has two main problems. The biggest is that it’s likely illegal.

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The FCC clearly stated that the internet requires a single national regulatory framework and has explicitly barred individual states from passing their own patchwork rules. Under federal preemption, any state or local attempt to regulate the internet is invalid.

This is only common sense. If broadband providers were required to create and operate 50 – or 150 – different networks to comply with different state and local regulations, internet speeds would go down, crashes and glitches would go up and costs would skyrocket.

It’s no surprise the Trump administration has immediately sued to overturn the California law. And while plenty of Californians are thrilled to oppose the president and Attorney General Jeff Sessions, this is not a partisan issue. The FCC took the same stand under President Barack Obama in 2015.

Mike Montgomery headshot.jpg
Mike Montgomery

The second problem with California’s new law is that it’s not totally about net neutrality.

Net neutrality, itself, isn’t controversial. Virtually everyone agrees on the basics – that no internet company should be allowed to block lawful websites, to artificially slow down traffic, or discriminate against anyone’s data. The problem is, no one in authority seems willing to enact a straightforward net neutrality bill that does these things.

The 2015 rules included these basics, but added on controversial and confusing provisions that drained support. One of these was a “general conduct” prohibition that says internet companies “shall not unreasonably interfere with or unreasonably disadvantage” anyone’s use or participation in the internet. What does that mean? I don’t know. No one does. It’s totally open-ended and confusing.

The new California law goes far beyond any previous rules by also barring free data plans that largely benefit low-income consumers, which is a strange ingredient to add.

As a result, the state law will remain mired in court and taxpayers will bear the expense of defending a law that may not withstand litigation and consumers will continue to lack basic net neutrality protections.

But fortunately, as Yogi Berra reminds us, it ain’t over ’til it’s over. There is a clear path forward to establish strong net neutrality for everyone who uses the internet -- a simple, straightforward federal law that includes all the core protections without any of the controversial add-ons.

Such a measure would have strong bipartisan support in Congress and is the only path toward nationwide, comprehensive protections.

Mike Montgomery is executive director of CALinnovates, a nonpartisan coalition of tech companies and nonprofits. He can be contacted at mike@calinnovates.org.

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