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Attorney General Becerra Continues Defense of State Net Neutrality Law in Federal Court

SACRAMENTO – California Attorney General Xavier Becerra today issued a statement on California’s landmark net neutrality law ahead of Tuesday’s hearing before the U.S. District Court for the Eastern District of California in Sacramento. On August 5, 2020, the former Trump Administration and major internet service providers (ISPs) asked the district court to issue a preliminary injunction to prohibit enforcement of California’s net neutrality law. Attorney General Becerra opposed that motion, arguing that California’s net neutrality law is legal and that open access to the internet is critically important to protect public health, safety, public welfare, and a competitive marketplace. 

Earlier this month, the Biden Administration withdrew from the case, underscoring that California’s net neutrality law is not preempted by federal law. However, major ISPs are still pursuing their challenge to the law. At tomorrow’s hearing, Attorney General Becerra will continue his defense of California’s net neutrality law, the most comprehensive net neutrality law in the nation, which was enacted in 2018 and has been on hold pending litigation.

“The COVID-19 pandemic has moved so much critical activity online: seniors rely on telehealth to stay out of hospitals, students rely on distanced learning to attend school, and businesses rely on healthy internet competition to grow the economy,” said Attorney General Becerra. “This health crisis reminds us that a fair and open internet is essential. Net neutrality must be protected and defended."

Attorney General Becerra argues that without laws providing for net neutrality, ISPs can engage in harmful and anticompetitive behavior by providing preferential treatment to certain internet applications and services, thereby limiting internet access for some users, including lower-income people. The monopolistic behavior of ISPs is contrary to the original architecture of the internet, which was designed to ensure that the companies that connect people to the internet can’t interfere with what people do online. 

California’s arguments focus on these key points:

  • The Federal Communications Commission decision to deregulate the ISPs doesn’t conflict with California’s decision to enforce net neutrality. When it repealed federal net neutrality rules in 2018, the FCC removed its own authority to enforce net neutrality over ISPs, thus withdrawing any authority it had to impose that deregulatory stance on states.
  • The federal Communications Act doesn’t ban states from regulating online services. While the plaintiffs argue that the Communications Act bans states from regulating all online services, the FCC didn’t make this sweeping argument in its repeal of net neutrality and that position contradicts case law.
  • Net neutrality doesn’t cause internet service providers irreparable harm. ISPs comply with varying net neutrality laws in the various countries where they provide broadband internet access.

In 2018, California passed Senate Bill 822, which established net neutrality protections for Californians. The Trump Administration immediately sued California challenging the state law, and was joined by a coalition of trade associations representing the largest ISPs in the country. The following year, in a separate lawsuit brought by states, public interest groups, and internet companies, the D.C. Circuit Court of Appeals ruled that the FCC lacked authority to block state net neutrality laws. On August 5, 2020, the Trump Administration and internet service providers asked the district court to issue a preliminary injunction against enforcement of California’s law. 

 

 

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