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In the Wake of the FCC’s Net Neutrality Repeal, California Eyes Its Own Net Neutrality Law

But these efforts face a steep uphill climb.

by Karl Bode
Jan 8 2018, 3:00pm

Image: shutterstock

While the FCC’s attempt to repeal net neutrality has received ample attention, less noticed is the fact that the attack on net neutrality is just one small part of a much bigger, dumber plan by the broadband industry. A plan to gut nearly all state and federal oversight of some of the least-liked and least-competitive companies in America.

The FCC’s “Restoring Internet Freedom” order not only removes large swaths of FCC authority over ISPs like Comcast, but it shovels most remaining oversight to an FTC that lacks the authority to police bad behavior among ISPs. Worse, should AT&T win an ongoing court battle against the FTC for lying about its throttling practices, the FTC’s already limited ability to protect consumers could soon be all-but demolished (something oddly omitted by backers of the proposal).

Numerous states, including Washington, New York and most recently California, have begun proposing their own net neutrality laws in the wake of the FCC repeal, but these efforts face a steep uphill climb.

Should the net neutrality repeal survive a looming storm of court challenges, the FCC’s repeal “preempts” states from protecting consumers in the wake of this newfound federal apathy to consumer welfare. That’s a problem in an era when state investigations of ISPs (like New York AG’s lawsuit against Charter for substandard speeds) are often the closest many of these companies get to anything even vaguely resembling accountability.

The end result of this overarching agenda will be the inability of federal or state governments to police anti-competitive ISP behavior, whether that’s imposing arbitrary and unnecessary usage caps, charging you more for privacy (something both AT&T and Comcast have already flirted with), or covertly modifying your data to track you around the internet without your permission.

That’s of course on top of more standard abuses like endless price hikes, slow speeds, and the industry’s knack for historically-atrocious customer service.

Undaunted, several states are stepping up to challenge the FCC’s looming ban on state oversight of broadband providers. And since the FCC’s order blocks states from passing obvious net neutrality rules, many lawmakers in states like New York are trying to find more creative ways to hold companies like Comcast accountable.

In several instances states are attempting this by blocking ISP access to utility poles, rights of way, or from government contracts if they’ve clearly engaged in predatory, anti-competitive behavior. One Washington state proposal would also require that ISPs “disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband internet access services sufficient for consumers to make informed choices.”

California Democratic state Senator Scott Weiner has also introduced a proposal that’s little more than a placeholder for now, but vaguely outlines how California intends to use any resources at its disposal to hold incumbent ISPs to account.

"Under existing law, the Public Utilities Commission has regulatory authority over public utilities, including telephone corporations,” the proposal notes. “The Digital Infrastructure and Video Competition Act of 2006 establishes a procedure for the issuance of state franchises for the provision of video service, defined to include cable service and open-video systems, administered by these commissions,” it argues.

“The bill would state the intent of the Legislature to enact legislation to effectuate net neutrality in California utilizing the state's regulatory powers and to prevent Internet service providers from engaging in practices inconsistent with net neutrality,” says the preliminary proposal.

Weiner’s office says his proposal has six co-authors, and that the legislation will expand as the state government crafts its own definition of what constitutes a net neutrality violation.

Unfortunately, California’s effort faces a steep uphill climb.

One, getting any consumer protections past ISP lobbying pressure is often daunting, as California discovered when the state tried to pass broadband privacy protections last year. California’s privacy proposal, backed by the EFF, would have similarly replaced FCC broadband privacy rules that the GOP and Trump administration killed in early 2016.

Those rules would have forced ISPs to transparently disclose what data ISPs collect and who they sell it too. But ISP lobbyists (working in concert with companies like Google) convinced many lawmakers that the modest proposal would somehow harm cyber security, increase internet pop ups, and embolden extremists. It stalled it committee.

California’s net neutrality proposal faces a similar fate. Even if it passes, there’s a real chance that lobbyists will successfully water down the bill’s language to ensure ample loopholes, something we saw on the federal level with the FCC’s flimsy 2010 net neutrality rules (which didn’t cover wireless, and let ISPs engage in anti-competitive behavior provided they claimed it was for the health and security of the network).

And of course this is just California. Other states where AT&T, Verizon and Comcast have an even stronger stranglehold over state legislatures will likely pass no rules at all, resulting in massive enforcement coverage gaps that could prove hugely detrimental to broadband consumers and internet users alike.

So while these state-level efforts could prove interesting to watch, the end result is far from certain. Still, the best route toward blocking the FCC’s attack on net neutrality remains in the courts, where looming lawsuits will highlight the agency’s failure to listen to the public, failure to heed concerns from those that built the internet, and failure to follow procedure as the agency turned a blind eye to rampant fraud and identity theft during the open comment period.