The largest business group in the country says California's new net neutrality law is unconstitutional and should be blocked.
“California has designated itself the nationwide regulator of the internet,” the U.S. Chamber of Commerce says in a proposed friend-of-the-court brief filed late last week with U.S. District Court Judge John Mendez in the Eastern District of California. The group adds that the Federal Communications Commission “just rejected approaches like California’s in an exhaustive, 196-page order.”
The organization is seeking to weigh in on lawsuits challenging California's new law. Earlier this month, the Department of Justice and four major broadband industry groups sued to invalidate the California measure.
That law (SB 822), signed by Governor Jerry Brown on September 30, largely restores the Obama-era rules. The statute 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.
Last December, the FCC voted to pass repealed a set of similar nationwide regulations, and to prohibit states from passing or enforcing their own version of net neutrality rules. FCC Chairman Ajit Pai, who shepherded the repeal, says the prior rules were too "heavy handed,” and depressed investment. But net neutrality proponents say net neutrality rules are necessary to prevent Comcast, AT&T and other broadband providers from censoring sites or discriminating against competitors like Netflix.
It's not known whether the agency's attempt to preempt state laws will hold up in court.
The Chamber of Commerce argues that the FCC's preemption order is valid, and that California lawmakers are not empowered to override a federal deregulatory policy.
The Chamber also says California's net neutrality law is unconstitutional because it will affect activity in other states. The Constitution contains a clause empowering Congress to regulate interstate commerce; courts have interpreted that clause as prohibiting individual states from passing laws that effectively govern interstate commerce.
“The 'practical effect' of SB-822 is to control out-of-state conduct,” the Chamber writes. “There is simply no way that the bill’s effects can be contained within California’s boundaries: that is not how the internet works.”
California's Attorney General is expected to file papers by Friday defending the net neutrality law.