• by Wendy Davis  @wendyndavis, April 7, 2021

Broadband carriers are urging a federal appellate court to prevent California from enforcing its net neutrality law, which was passed after the Federal Communications Commission repealed nationwide broadband regulations.

In papers filed Tuesday with the 9th Circuit Court of Appeals, lobbying groups for the cable and telecom industry argue that broadband is an interstate service, and therefore not subject to regulation by individual states.

“This case is about whether California -- and, therefore, each of the 50 states -- can impose its own preferred (and potentially incongruous) rules on an interstate communications service that Congress and the FCC have consistently determined must be subject to a single, uniform set of federal rules,” the American Cable Association, CTIA--The Wireless Association, NCTA--The Internet & Television Association and USTelecom--The Broadband Association write.

The organizations are asking the appellate court to reverse U.S. District Court Judge John Mendez's refusal to issue an injunction that would have prevented California from enforcing its open internet law.

California's net neutrality law (SB 822), enacted in September of 2018, prohibits broadband providers from blocking or throttling traffic, charging higher fees for fast-lane service, and from exempting their own video streams from consumers' data caps.

The Obama-era FCC voted to pass similar regulations in 2015 -- though those regulations left room for some forms of data-cap exemptions.

Two years later, the Trump-era FCC voted to repeal the utility-service classification as well as the bulk of the 2015 rules.

Former FCC Chairman Ajit Pai, who shepherded the repeal, claimed the prior rules depressed investment. But net neutrality advocates say net neutrality rules are necessary to prevent broadband providers from limiting people's ability to access streaming video, search engines and other online services.

Several states, including California, responded to the repeal by passing their own versions of net neutrality laws.

The Trump administration brought a lawsuit challenging California's rules, but the Biden administration withdrew the case earlier this year.

The four major broadband industry groups brought a separate lawsuit challenging California's rules. The industry argued that California's law is invalid because internet access is “inherently interstate,” and therefore not subject to state laws.

The carriers also argued that California's law conflicts with the FCC's decision to revoke the Obama-era rules.

Mendez rejected those arguments at a hearing in February. He said in his ruling that Congress never specifically prohibited states from passing their own laws that would affect internet service.

The rules went into effect late last month -- 30 days after Mendez's ruling. That same day, AT&T ended a zero-rating program that exempted HBO Max streams from customers' monthly data caps.

The carriers are now asking the 9th Circuit to find that the FCC's repeal of the 2015 rules effectively invalidates California's law.

“The FCC acted within its statutory authority when it applied its policy judgment and eliminated the conduct rules California has reimposed,” the carriers argue. “California is no freer to disregard the FCC’s policy objectives ... than it may ignore congressional intent.”