• by Wendy Davis  @wendyndavis, October 3, 2018

Four broadband industry groups sued Wednesday to block a California law that reinstates the Obama-era net neutrality rules.

“This case presents a classic example of unconstitutional state regulation,” the American Cable Association, CTIA -- The Wireless Association, NCTA -- The Internet & Television Association and USTelecom -- The Broadband Association, write in a complaint filed Wednesday in U.S. District Court for the Eastern District of California.

The associations are seeking to invalidate California's new law and prohibit the state from enforcing it. Their lawsuit comes two days after the Department of Justice filed a similar action.

California's SB 822, signed late Sunday and slated to take effect in January, explicitly prohibits broadband providers from blocking or throttling traffic, charging higher fees for fast-lane service, and exempting their own video streams from consumers' data caps. The law largely mimics the Obama-era net neutrality regulations, which also prohibited carriers from blocking or throttling traffic and charging higher fees for prioritized delivery.

The former federal regulations didn't explicitly ban companies from zero-rating -- or exempting material from subscribers' data caps. But those rules contained a "general conduct" standard that was interpreted as prohibiting some forms of zero-rating -- including AT&T's "Data Free TV," which allows wireless customers who purchase DirecTV to stream video without burning through their monthly data caps.

Last December, the FCC voted to pass the “Restoring Internet Freedom” order, which repealed the Obama-era regulations. That order also contains a provision overriding any state laws.

The broadband associations now argue that the FCC's decision to override state laws means that California's new measure is invalid.

“California’s attempts to revive ... a repealed federal regulatory regime are plainly preempted,” the organizations write. “SB-822 directly re-imposes the very same regulatory restrictions that the FCC repealed and expressly preempted states from enacting.”

The broadband carriers also argue that California's law is unconstitutional on the grounds that Internet access is “inherently interstate,” and therefore not subject to state laws. The Constitution empowers Congress to regulate interstate commerce; courts have interpreted that clause to mean that individual states usually can't pass regulations that effectively govern interstate commerce.

“As the FCC has long recognized, and as courts have confirmed, Internet access service is inherently interstate, and it is impossible or impracticable to separate Internet service into intrastate and interstate activities,” the organizations write.

California isn't the only state to attempt to reinstate net neutrality rules. The governors of Rhode Island, New York, New Jersey, Montana, Hawaii and Vermont recently signed orders requiring state agencies to contract only with providers that follow net neutrality principles. In Oregon, lawmakers passed a bill that prohibits state agencies from contracting with broadband providers that violate net neutrality principles. Washington state passed a more comprehensive law that prohibits broadband providers operating in the state from blocking or throttling traffic and from charging companies higher fees for prioritized delivery.