Terry H. Schwadron
March 21, 2021
Between the completely opposing use of government power by Joe Biden and his predecessor and our country’s knee-jerk response to go to court, it’s hard to tell what the ruling law is at any moment on a wide variety of public issues.
Recently, it was an internet neutrality law — the issue that requires that big telecom companies keep internet access on a fair basis for all would-be publishers and bars the telecoms from using fees or speed to deter competitors.
A federal court ruling upheld the nation’s first law on the subject, this one from California, opening the way for other states to adopt open-internet regulations.
Of course, this should more responsibly be a national or even international rule, but the Donald Trump administration had squashed efforts to do so, and it’s still too early in the Biden era to see how this issue is going to rate in the regulatory changes his administration will seek — though Biden has said he favors net neutrality.
Indeed, it was the Trump Justice Department that filed the legal challenge to the California law, and AT&T, Comcast, Verizon and industry groups then joined in, also filing their own lawsuit.
California enacted its law in 2018, after the Trump administration eliminated national net neutrality protections. At the time, California lawmakers said they had no choice but to adopt their own approach to keep telecoms from blocking or slowing down Web traffic or charging for faster delivery of selected content or services.
But it was clear that the legislation was never intended to serve California alone.
So, naturally, in the spirit of over-complicating all issues of regulation, the challenge to the law basically is a statement that this issue should be a matter for federal regulation rather than individual state law. The telecoms, who don’t want the regulation at all, argued that the federal government specifically had preempted the states from adopting local net neutrality laws, which they said rendered California’s rules “a classic example of unconstitutional state regulation.”
What Does It Mean?
The first move by Biden’s Justice Department in February was to withdraw from this challenge to the California regulation.
For sure, this is an issue likely to bounce through appeals and to pick up interest in other states that may see the chance to do something popular to smaller Internet publishers without the specter of legal challenge. In the meantime, presumably, California can insist on adherence to current neutrality within its borders, though nothing specific has been announced by the attorney general’s office on the subject.
More importantly, perhaps, the case now focuses pressure to restore national net neutrality rules with some teeth. At the moment, the membership of the Federal Communications Commission is deadlocked at two Democrats and two Republicans, a political composition that makes it nearly impossible for regulators to resolve the fight until the president nominates and the Senate confirms another Democratic member. Jessica Rosenworcel, the new acting Democratic FCC chairwoman and former counsel for the appropriate Senate oversight committee, hailed the decision.
Legal arguments aside, as a practical matter, it should be obvious, as it has proved to be for car manufacturers, among others, that it makes no sense to be talking about regulating access to the Internet within the state borders of California. For that matter, it is difficult to think about internet regulation stopping even at national borders.
The big automakers decided it was nutty to think about making one version of their cars and trucks to meet more stringent emission standards in California than across the rest of the company. Sure, Californians buy one of every six cars or so, but that means the rest have to be sold in other jurisdictions.
And, just as with net neutrality, when California passed more stringent car emissions while the Trump administration was killing national standard improvements, Donald Trump declared political war on the state.
It is because of net neutrality, of course, that I can publish this column. If telecoms got their way, only material that they were sponsoring would be delivered in a timely fashion or without special fees for them.
That would allow them to treat the internet as their own, like a television network, and to favor only shows that they produce.
So, this issue is best explained as a part of the larger free speech discussion we’re having about all media access.
Congressional hearings aired criticisms and defenses for cable operators to air channels that consistently present “misinformation” about election results, for example. But no one in the hearings was arguing about whether these channels would have to pay more for their information to arrive in a timely manner.
The House Judiciary antitrust subcommittee is holding hearings exploring whether Apple, Google, Facebook and Amazon engage in anti-competitive monopoly tactics. That effort seems closer to the neutrality issue: the opening hearing focused on how social networks, app stores and other services serve as gatekeepers against competitors.
Even the four trade groups involved in this lawsuit over the California regulation — America’s Communications Association, CTIA, the NCTA and USTelecom — said that “we agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet.”
Hey, we have agreement on what should happen procedurally. Now let’s do the right thing.