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California Could Save Net Neutrality

A bill in the California State Senate could set the standard for new net neutrality laws.

Since repealing net neutrality last December, the FCC has faced significant pushback. In the federal government, Senators have introduced a resolution to overturn the decision. The governments of Montana, New York, and Hawaii have passed laws protecting consumers from ISPs that don't adhere to basic net neutrality protections. Now, California has followed suit with SB-822, the most thorough pro-net neutrality bill yet, and one that not only has a chance of passing but could restore state-level net neutrality nationwide.

The bill, drafted by California state senator Scott Wiener, not only bans ISPs from slowing down or crippling access to certain websites but goes even further than that, cracking down on "zero-rating," a discriminatory practice that allows you to access content from certain privileged websites without adding to your bills or data. This is something we already live with: for example, if you have DirecTV Now and are on an AT&T plan, then the programs you stream with DirecTV don't count in your data usage. Without net neutrality protections, ISPs could go into overdrive with zero-rating by say, not counting Spotify in your monthly data plan but charging you extra for streaming on Tidal, the goal being to force you to use affiliated websites and penalize their competitors. Under Obama, the FCC was investigating the ethics of zero-rating, but the investigation was killed once Trump took office and Ajit Pai became chairman. The new bill would not ban zero-rating outright, but limit the power of ISPs to favor certain sites above others. 

The bill also challenges ISPs from setting unfair rules based on interconnection disputes. In 2014, users found that websites like Netflix would not load and assumed it was their ISP's fault - but it wasn't. Netflix was locked in a dispute between the transit provider (your typical ISP like Verizon) and the "last-mile" providers (which deliver said content directly to your streaming device) over whether the transit provider should pay additional fees to deliver to the last-mile. This was another way for ISPs to mess with your access to content, and New York Attorney General Eric Schneiderman sued Spectrum-Time Warner Cable over it last year.

The "internet fastlane," perhaps the most controversial aspect of net neutrality's repeal, is addressed in the bill but like zero rating, not banned outright. Instead, the bill protects consumers by allowing them the option of a fast lane that, if they use it, would allow them to prioritize certain websites above others. For example (as Wired puts it) if you want to use Skype for video calls but don't want it to be slowed down by the rest of your family watching Nertflix, you can put Skype into your fastlane and give it priority over everything else. This sounds like zero-rating but it isn't, since the choice to prioritize Skype is yours, not your ISP's.

Although the FCC's decision blocks states from adopting their own net neutrality laws, Stanford law professor Barbara van Schewick, who consulted with Wiener on his bill, argues that this is invalid

"According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

"But by reclassifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections.”

In plain English, when the FCC repealed net neutrality, they also repealed their authority to adopt net neutrality protections. Therefore, they can't sue states that adopt their own net neutrality protections. By taking advantage of this loophole, Wiener has outsmarted the agency at their own game. 

But before we pop the corks, the bill has to pass. If it does, California could find itself once again setting the standard for the nation, just as it did in 2003, when it passed the Online Privacy Act. If other states follow suit, it would be not just a win against Donald Trump and the Republicans, but a vindication of civil liberties.