By Nicole Su, Marty Stern and Mark Palchick
As we previously reported, California enacted the Nation’s toughest net neutrality law, SB 822, seeking to restore the Obama-era Net Neutrality rules, which were repealed by the current FCC in an order released earlier this year. Merely hours after Governor Brown signed the bill into law last month, the U.S. Department of Justice filed suit against California to prevent the law from going into effect.
Earlier this year, 22 states (including California) and the District of Columbia sought review in the United States Court of Appeals for the D.C. Circuit of the FCC’s Restoring Internet Freedom, Declaratory Ruling, Report and Order, 33 FCC Rcd 311 (2018)(“2018 Order”), which repealed the net neutrality rules that among other things: prohibited Internet Service Providers from prioritizing traffic, offering zero rating, blocking and throttling internet traffic; and imposed heightened privacy obligations on Internet Service Providers. Mozilla Corp. v. FCC, Nos. 18-1051 et al. (D.C. Cir., filed Feb. 27, 2018). Oral argument in the D.C. Circuit proceeding is set for February 1, 2019.
California’s net neutrality law was set to take effect January 1, 2019. But on Friday, October 26, 2018, California agreed not to enforce the state net neutrality law until after the D.C. Circuit case is decided and all appeals have been exhausted.
In the California suit, the DOJ agreed to withdraw its Motion for Preliminary Injunction. California, in turn, has agreed not to enforce SB 822 until after the D.C. Circuit case has been decided, after which, the DOJ will have 30 days to re-file its Motion for Preliminary Injunction. California has further agreed not to enforce the net neutrality law until 30 days after a decision has been rendered on any renewed Motion for Preliminary Injunction.
We’ll cross our fingers that we don’t have to wait a year and a half for a decision from the D.C. Circuit on the Net Neutrality challenge like we did for its decision on the ACA Int’l appeal of the FCC’s TCPA Omnibus Ruling from 2015.