• by Wendy Davis  @wendyndavis, May 5, 2021

California is urging a federal appeals court to leave in place a state net neutrality law that broadly prohibits broadband carriers from blocking or throttling traffic and from charging higher fees for prioritized delivery.

“Congress has not established a federal regulatory regime that bars the states from taking steps to safeguard access to something as essential as the Internet,” California Attorney General Rob Bonta argues in papers filed Tuesday with the 9th Circuit Court of Appeals.

“The California legislature determined that net neutrality is vital to protecting public health, safety, and welfare in the state,” Bonta adds. “Nothing in federal law prevents California from exercising its traditional police powers in this manner.”

The papers come in response to a challenge to the state law by lobbying groups for the cable and telecom industry (including ACA Connects--America's Communications Association, CTIA--The Wireless Association, NCTA--The Internet & Television Association and USTelecom--The Broadband Association), which say California lacks authority to regulate broadband.

Earlier this year, U.S. District Court Judge John Mendez in the Eastern District of California rejected the carriers' request for an injunction that would have prevented California from enforcing its open internet law. The carriers are now appealing that decision to the 9th Circuit.

California passed its net neutrality law in 2018, shortly after the Federal Communications Commission repealed the nationwide rules it had passed just three years earlier.

Those former rules treated broadband as a “utility” service, and imposed some common carrier rules -- including prohibitions on blocking and throttling traffic, and engaging in paid prioritization.

The former rules also contained a general conduct standard that broadly barred carriers from hindering the ability of consumers and content companies to reach each other online. The Obama-era FCC interpreted that standard as prohibiting carriers from zero-rating their own content.

Former FCC Chairman Ajit Pai, who shepherded the repeal, argued that the prior rules depressed investment.

But net neutrality advocates say the rules are necessary to prevent broadband providers from restricting subscribers' ability to access streaming video, search engines and other online services.

After the FCC's repeal, California and several other states passing their own versions of net neutrality laws. California's measure reinstates the prohibitions on blocking, throttling and paid prioritization, and also explicitly prohibits carriers from exempting certain content from customers' data caps.

The carriers that are seeking to block California's law argue that internet access is “inherently interstate,” and therefore not subject to state laws. The broadband industry also argues California's law conflicts with the FCC's decision to deregulate the internet by revoking the Obama-era rules.

But California's attorney general counters that the FCC's 2018 deregulatory move effectively stripped the agency of authority over internet access. When the FCC revoked the Obama-era rules, the agency reclassified broadband access as an “information” service -- and information services aren't subject to the same kinds of common-carrier regulation as utility services.

California's law “does not conflict with the 2018 Order, which was premised on the FCC’s lack of authority to promulgate federal net neutrality conduct rules,” the state argues.

“Because the FCC lacks this authority, it cannot prevent the states from enacting their own net neutrality requirements,” California's attorney general writes. “In the absence of statutory authority, it is irrelevant that the FCC’s reclassification and repeal decisions were motivated in part by its preference for deregulation.”

The broadband industry is expected to respond to Bonta's arguments by the end of the month.