California is trying to bring back net neutrality, but the debate is complicated

Reporting from Sacramento —  California state lawmakers are angling for another fight with the Trump administration, this time to revive federal net neutrality rules that they say are crucial to a fair, open and free internet.

Senate President Pro Tem Kevin De León (D-Los Angeles) has introduced legislation that would task a state agency with establishing new regulations, making it unlawful for broadband companies to block or limit access to internet services in California. Through his own bill, state Sen. Scott Wiener (D-San Francisco) is working with a coalition of lawmakers and tech advocates to craft new net neutrality rules of their own.

Despite the dueling approaches, the two prominent Democrats have pledged to work together. Their proposals face heavy opposition from the telecom industry. And supporters say neither effort will be enough if the state does not also resuscitate federal rules to protect the privacy of internet customers.

“If the idea is, ‘I want people to go wherever they want on the internet in California,’ they won’t do that if they think their information is being monetized and privatized by visiting certain sites,” said Ernesto Falcon, legal counsel for the Electronic Frontier Foundation.

The net neutrality rules, put in place under then-President Obama in February 2015, barred broadband and wireless companies such as AT&T Inc., Charter Communications Inc. and Verizon Communications from selling faster delivery of some data, slowing speeds for certain video streams and other content, and discriminating against legal material online.

The Federal Communications Commission voted in December to roll those rules back, with Republicans calling for an end to the utility-like oversight of internet service providers (ISPs). The decision came months after the federal agency and Congress blocked a separate set of federal privacy regulations from going into effect. Those would have limited companies from selling or permitting access to their customers’ browser history.

Legislation by De León introduced this month would put the California Public Utilities Commission in charge of creating new net neutrality rules, and give the state’s attorney general the power to enforce them.

“We cannot allow the profits and political interests of internet service providers to outweigh the public interest in a free and open internet,” the Senate leader said this month at a news conference in San Jose. “If the Trump administration won’t protect consumers, the state of California will.”

Wiener’s bill is just a placeholder, since lawmakers plan to craft the details after discussions with supporters and opponents. They expect to require companies to adhere to net neutrality rules as a condition for obtaining state contracts, as part of cable franchise agreements and when broadband wireless communications are attached to utility poles.

On Monday, a governor’s order made Montana the first state to prevent companies from receiving state contracts if they interfere with internet traffic or give advantages to higher-paying sites or apps.

California Senate leader Kevin de León pledges to protect California consumers through state net neutrality rules »

Wiener and other members of the Senate Energy, Utilities and Communications Committee last week voted to advance De León’s legislation. As they did, they expressed concerns that the historically embattled CPUC might not be able to handle the monumental task of regulating the internet — a huge responsibility for a state agency with already too many responsibilities.

At a hearing on the bill, Sen. Jerry Hill (D-San Mateo), who has worked with Gov. Jerry Brown and other legislators in attempts to overhaul the agency in recent years, called the CPUC “too big to succeed.”

Other witnesses said giving the CPUC that much power could trigger federal legal challenges.

The committee testimony also gave a glimpse into the opposition to come: Lobbyists representing industry groups and major wireless companies — including AT&T, T-Mobile and Sprint — argued state net neutrality rules would create an uneven patchwork of laws nationwide.

Bill Devine, a Sacramento-based lobbyist for AT&T, told the committee that bringing back the regulations would create “a collision” in California between the “delay and expense of bureaucracy with the speed of innovation.”

The arguments echoed those made by industry lobbyists in 2016 against failed state legislation that would have vastly regulated the use of drones in California. Similar concerns also helped kill a bill last year that would have enshrined in state law the FCC’s rolled back internet privacy regulations.

The legislation by Assemblyman Ed Chau (D-Monterey Park) — supported by former FCC Chairman Tom Wheeler and smaller California ISPs — would have required broadband and wireless companies to get permission from customers before using or selling their browser history. It stalled in the Senate Rules Committee, chaired by De León, amid a behind-the-scenes battle between supporters and tech giants like Google.

De León says he supports the Chau legislation, which will resurface this year. Privacy advocates also are attempting to establish similar rules through a proposed statewide ballot measure.

Supporters of net neutrality legislation see the issues inextricably linked. In a letter to the state Senate Energy, Utilities and Communications committee, Falcon of the Electronic Frontier Foundation argued passing Chau’s bill should be the first priority, net neutrality rules the second.

“No one state will be able to restore what was lost in December,” when the FCC took action, he said. “But there is a lot states can do to move the networks in that direction.”

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UPDATES:

4:41 p.m.: This article was updated with additional details on a governor’s order in Montana.

This article was originally published at 12 a.m.