Editorial: The Justice Department sues California over its new net neutrality law. What a surprise

Moments after Gov. Jerry Brown’s office announced that he had signed a bill to restore net neutrality protections in California that the federal government abandoned, the U.S. Department of Justice sued to block the measure from going into effect. California lawmakers saw the measure (Senate Bill 822) as an important step to protect internet users in the state; the Justice Department saw it as yet another effort by the loony left state to dictate policy for the entire country.

The feds argue that the Federal Communications Commission, not the states, decides how the internet will be regulated (or not regulated). And having a uniform national policy on internet issues would indeed be a good thing. But that uniform policy should be one that preserves the status quo, protecting both consumers and the companies that offer content and services online from interference by local broadband providers such as AT&T, Spectrum and Comcast.

Last year, the FCC’s Republican majority went about as far as humanly possible in the other direction. It not only repealed a net neutrality rule the commission’s previous Democratic majority had adopted in 2015, it said the FCC had no authority to regulate broadband providers beyond requiring them to disclose accurately how well their networks perform, how much they charge and how they manage their networks. The move renounced the commission’s efforts over the previous decade to crack down on broadband providers that improperly favored some content, services or applications on their networks over others.

The FCC’s action was particularly galling in light of the near-monopoly control that many broadband providers enjoy in their local markets. Typically, consumers have two options at most for the ultra-high-speed connections demanded by high-definition video streaming, online gaming and numerous other applications. If a broadband provider decides to impose fees that tilt the online playing field in favor of established, deep-pocketed content and service providers, their customers may have little or no way to escape this warped version of the internet.

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That’s one reason California enacted SB 822, which bars broadband providers from blocking, throttling or otherwise discriminating against legal content and services online, effective in January 2019. Although it drew most of its provisions from the 2015 FCC rules, it went further in a few areas, most notably barring wireless broadband providers such as Verizon and T-Mobile from favoring their own sites and online services when charging for broadband data use.

Bear in mind that while the internet is global, the broadband services that connect consumers to the net are local, involving a set of wires (and, for wireless users, antennas and transmitters on poles) in each community being served. States have long overseen local telecommunications services offered to the public, while the federal government had jurisdiction over interstate ones. The issue here is the FCC’s declaration that broadband access is not like a local phone line but like voice mail, internet calling or online fax services, which only the federal government may regulate.

The legal battle is going to hinge on that declaration, which the commission contends preempts states from setting rules even as the FCC claims it has no authority of its own to regulate broadband providers. And it may be the case that federal telecommunication law overrides the state’s traditional power to protect consumers buying local services.

But we reached this point because Congress has repeatedly refused to set a clear national policy promoting net neutrality and ordering the FCC to preserve it. That’s why net neutrality rules and enforcement actions have been tied up in the courts for years — including the FCC’s decision last year to all but deregulate broadband services. Although they differ on some details, broadband providers, tech companies and consumer advocates all agree that the smart way forward is for Congress to enshrine net neutrality into federal law. Until it does, states like California are right to test the boundaries of their authority to protect internet users.

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