EDITOR’S NOTE: NET NEUTRALITY IS NOT THE TCPA BUT IT EFFECTS EVERYONE. GIVEN OUR TEAM’S EXPERIENCE WITH TELECOM AND TECHNOLOGY LAW AND REGULATION–AND GIVEN THAT WE ARE LOCATED IN CALIFORNIA– WE’LL BE KEEPING A CLOSE EYE ON THIS STORY FOR YOU.
On Friday, August 31, 2018, the California Senate approved the California Internet Consumer Protection and Net Neutrality Act of 2018, known as SB 822.
Net neutrality means that the companies that provide internet service can’t favor their own sites and slow down people using their services trying to visit other sites. The Obama administration had required that these Internet Service Providers (ISPs) play fair and let their users access all websites equally without slowing down access to other sites or speeding up their own sites. But Trump’s FCC Chairman–Ajit Pai– really disfavors net neutrality and believes that giving internet service providers the “freedom” to dictate the internet experiences of their users will provide a better internet experience for all for some reason. California, apparently, deeply disagrees with Chairman Pai and has passed a first-in-the-nation law requiring that the folks providing internet service not impose any speedbumps or barriers on their users in a bid to keep “one internet” as opposed to the potential for a frightening internet multiverse.
SB822 seeks to restore the Obama-era net neutrality protections passed in 2015, which was rolled back by the Trump administration earlier this year. California is among the thirty states having introduced bills to reinstate net neutrality after FCC issued its Restoring Internet Freedom Order earlier this January.
California’s bill is being called the strongest net neutrality law. It is being viewed as even more restrictive than the net neutrality laws under Obama.
SB 822 prohibits ISPs from discriminating or charging users differently based on content or application. It also prohibits ISPs from collecting new fees from apps and websites as a condition of reaching customers. Moreover, it prohibits “zero rating” – e.g., ISPs are prohibited from exempting services they own from customer’s data limits.
Specifically, SB 822 regulates the following:
1) Prohibits ISPs from engaging in certain activities that impact a consumer’s ability to lawfully access content on the internet, including, but not limited to the following:
a) Intentionally blocking lawful content, slowing or speeding traffic, or otherwise interfering with access to lawful content on the basis of source, destination, internet content, application, or service, or use of a non-harmful device.
b) Engaging in third-party paid prioritization.
c) Selectively zero-rating some internet content, applications, services, or devices or zero-rating in exchange for consideration or payment.
d) Engaging in practices that have the purpose of evading net neutrality requirements. This prohibition may not be construed as prohibiting ISP traffic exchange agreements that comply with net neutrality requirements.
e) Failing to publicly disclose accurate information about the network management practices, performance, and commercial terms of its broadband internet access services to enable consumers to make informed choices about those services.
f) Requiring consideration from edge providers, monetary or otherwise, for access to an ISP’s end users.
2) Prohibits mobile and fixed ISPs from offering services other than broadband internet access service over last-mile connection if those other services can be used as an equivalent of broadband internet and do at least one of the following:
a) Have the effect of evading net neutrality requirements or
b) Negatively impact the performance of broadband access internet services.
3) Exempts enterprise service offerings from the definition of Broadband Internet Access Services for the purpose of the bill.
4) Specifies that nothing in this bill limits ISPs from meeting the needs of emergency communications, law enforcement, public safety, or national security authorities.
5) States that any contractual waiver from net neutrality requirements is contrary to public policy and is unenforceable and void.
The bill is now with Governor Brown, who has until September 30 to sign the bill into law.
If signed by Governor Brown, California would be the fourth state – after Oregon, Vermont and Washington – to enact state level net neutrality legislation.
The patchwork of various state regulations that are developing would make it difficult for ISPs to comply with each one, making a lawsuit challenging the power of the federal government to preempt state law very likely. This makes a showdown in front of the Supreme Court inevitable.
We will have updates on TCPAland as the battle for net neutrality continues. Stay tuned.